Dispute Resolution
Cases
Ajomale v McGinley Constructions Ltd
Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0415-001131 / Case Ref No: 0315-17529
Appellant Tenant: Oluwatoromo Yemi Isaac Ajomale
Respondent Landlord: McGinley Construction Ltd
Address of Rented Dwelling: 27 Alexander Apartment, East Road, East Wall , Dublin 1
Tribunal: Eoin Byrne (Chairperson)
John Tiernan, Mary Doyle
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 08 July 2015 at 2:30
Attendees: Oluwatoromo Yemi Isaac AjomalE, Appellant Tenant
Daniel McGinley, Respondent Landlord’s Representative
In Attendance: Gwen Malone Stenographers
1. Background:
On 26/03/2015 the Tenant made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred to telephone mediation, however the mediation was unsuccesful and no agreement was reached by the parties.
Subsequently a valid appeal was received from the Tenant by the PRTB on 15/04/2015. The grounds of the appeal were Anti-social Behaviour, Breach of Fixed Term Lease, Deposit Retention, Invalid Notice of Termination and Unlawful Termination of Tenancy (Illegal Eviction). The Board at its meeting on 28/4/2015 approved the referral to a Tenancy Tribunal of the appeal.
The PRTB constituted a Tenancy Tribunal and appointed Eoin Byrne, John Tiernan and Mary Doyle as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Eoin Byrne to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of the date, time and venue set for the hearing.
On 8/06/2015 the Tribunal convened a hearing at 2:30pm at the offices of the PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
There were no further documents submitted at the hearing.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify the capacity in which they were attending the Tribunal. The Chairperson confirmed with the Parties that they had received the relevant papers from the PRTB in relation to the case and that they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was a formal procedure but that it would be held in as informal a manner as was possible; that the person who appealed (the Appellant) would be invited to present his case first; that there would be an opportunity for cross-examination by the Respondent; that the Respondent would then be invited to present his case, and that there would be an opportunity for cross-examination by the Appellant. The Chairperson said that members of the Tribunal might ask questions of both Parties from time to time.
The Chairperson explained that following this, both parties would be given an opportunity to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be recorded by the official stenographer present and he reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of up to €4,000, or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court on a point of law only.
The Chairperson asked the Parties if they had any queries about the procedure. There were none. The parties giving evidence were then sworn.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant’s case concerned a number of issues arising from events at the end of the tenancy, in particular allegations of anti-social behaviour, breach of a fixed term lease, deposit retention, invalid notice of termination and unlawful termination of the tenancy. He explained that he had resided in the dwelling with another named tenant and that the security deposit that was paid was €1,000 being €500 from each tenant.
The Appellant Tenant outlined that there was generally a good relationship between the parties over the three years of the tenancy, there having been just three disagreements between them in that period.
The first issue concerned the payment of rent, which he stated was paid in cash, despite his request that it be paid via bank transfer. He stated that he did not know the exact identity of the landlord and was not aware until recently that the landlord was McGinley Construction Limited. He indicated that he believed Daniel McGinley was the landlord.
The second issue he raised was in respect of the breakdown of appliances stating that the fridge, washing machine, dishwasher and stove all broke during the tenancy but that all issues were ultimately resolved. In respect of the stove, he indicated that during the past year in or around October 2014, water entered the circuitry, causing a short circuit and sparks, which led to the stove being replaced.
The third issue concerned the water supply in one of the bathrooms being turned off for a number of days, while issues with the apartment below were being resolved. He said that the dwelling was accessed on that occasion without his prior knowledge or permission.
The Appellant Tenant stated that he always had a fixed term lease in place. He indicated that after the fixed term lease expired, he was advised by the Respondent Landlord’s representative that the rent was going to be increased. However, he stated that they agreed that the Respondent Landlord would allow them to remain in the dwelling at the old rent until the end of April 2015 when it was intended that he and his co-tenant would then vacate the dwelling.
The Appellant Tenant stated that on the 24 March 2015 he had put eggs on the hob part of the stove to boil and had then left the dwelling with a friend to walk her to the bus stop and to visit the shop. He accepted that he was out of the dwelling for 35 to 40 minutes. He indicated that when he returned to the dwelling, there was smoke coming from the dwelling and that he was not allowed to enter the dwelling until the fire brigade arrived. He stated that he wanted to turn the electricity off but that this was not done until one hour later when the fire brigade arrived. He accepted that it was negligent to walk out of the apartment and leave the hob on. However, he contended that the damage was only in the kitchen and balcony area and that he did not believe it should have cost the €22,000 the Respondent Landlord’s Representative has asserted. He stated that he had not been provided with a breakdown of the cost.
The Appellant Tenant also stated that he was not allowed to stay in the dwelling, despite the damage being in his view limited to the kitchen. He asserted that he was initially given only 24 hours to remove his belongings and had to ask for more time to remove his items. He indicated that he was not able to remove all of his belongings as he had nowhere safe to them. He accepted that he was provided access on the 26 March 2015 to remove his belongings from the dwelling, and that he removed a number of the less valuable belongings. However, he stated that he could not see properly to pack all his belongings as the electricity was off, despite the fact he believed only the electricity to the kitchen needed to be turned off. He indicated that a number of his more important and valuable belongings remained in the dwelling.
He stated that having been accommodated by a neighbour on the first night and by a friend in the immediately succeeding nights he secured a new dwelling for himself as of the 3 April 2015 and arranged to return to collect his remaining belongings on that date. However, he stated that he was texted on the 2 April to advise him that the belongings had been removed to a storage space. He said that his belongings were removed in bin bags and that a number of items of clothing were crumpled as a result and that there were footprints on a suit. He also stated that a pair of expensive headphones were broken and that not all his belongings were in the storage room. He indicated that the total cost of all broken and missing items was about €600 to €700. He stated that he did not receive any further access to the dwelling after that and that he understood new tenants took up occupation in May 2015.
The Appellant Tenant denied any assertion that the fire was caused by a deep fat fryer and said that it was simply an accident. He indicated that he was unaware until the hearing date that the Respondent Landlord’s loss was not fully insured and that he did not believe, in any event, that the cost of repair should have exceeded the amount of his own claim. He stated he would be happy with the return of his portion of the security deposit of €500 and the cost of his missing and damaged items of €600 to €700.
Respondent Landlord’s Case:
The Respondent Landlord’s Representative stated that the correct landlord was McGinley Construction Limited and that he was attending the hearing on their behalf.
In respect of the background issues raised, he asserted that the Appellant Tenant had been given the option of paying rent into the bank but had asked for the facility of payment by cash. He stated also that he had asked permission from the Appellant Tenant in advance to enter the dwelling to turn off the water and that consent for this had been given. He accepted that there had been issues with other items and appliances during the tenancy but that these had been dealt with. He indicated that the hob had been replaced as a result of the short circuit issue and that the replacement hob which at the time was new had been sourced from another vacant apartment in the development.
In respect of the issues on the 24 March, he stated that Seamus Flanagan, the Respondent Landlord’s employee, visited the dwelling after receiving a phone call about smoke coming from the dwelling. He stated that, from watching CCTV, it could be seen that the Appellant Tenant was out of the building for approximately 40 to 45 minutes. He asserted that the hob had not simply short circuited as had previously happened, as that would have blown the trip switch. He contended that the cause of the fire was a deep fat fryer and that, when during the repair works the electrician turned on the electricity, it was evident that all four hob rings had been on and the switches had melted in the ‘on’ position. He denied any suggestion that a request for an itemised detailed bill for the damages had been received from the tenant.
He stated that at no stage was the possibility of the Appellant Tenant moving back into the dwelling after the fire discussed. He stated that the Appellant Tenant was asked to make alternative arrangements, as the dwelling was not habitable and the insurance assessor had indicated that vacant possession was required. He accepted that the dwelling was under-insured but that this was only discovered subsequent to the fire. He also stated that it was not safe to turn on the electricity to the kitchen until the dwelling was repaired. He relied upon the photographs submitted in respect of the damage including smoke damage to the dwelling. He indicated that all wires in the kitchen had to be removed, new cupboards installed and the electrical work re-certified. He stated that the total cost of repair was as outlined in the documentation submitted, being €22,777 and that the insurance only covered €8,984.87, albeit the Respondent Landlord reserved their position and intended to bring proceedings in respect a claim for the difference between the amount of the deposit and the total cost of repair.
The Respondent Landlord’s Representative stated that he moved the Appellant Tenant’s belongings on the 1 April 2015, to a safe, secure, dry downstairs storage area. He stated that all items in the dwelling belonging to the Appellant Tenant remaining on the 1 April 2015 were put into shopping trolleys and removed by him. He stated that he did not understand why the Appellant would have left valuable belongings in the dwelling as stated, given that he had been given an opportunity on the 26 March 2015 to remove belongings and did so, especially also as the door to the dwelling was open from the 24 March 2015 to the 27 March 2015, due to its having been broken open in the course of the fire.
The Respondent Landlord’s representative thus asserted that the deposit was retained to cover part of the cost of the repairs and that they were not responsible for any damage to the Appellant Tenant’s belongings or any missing items.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. That the monthly rent in respect of the tenancy was €1,000, along with €50 in respect of heating, and that the Appellant Tenant paid €515 per month.
2. That the deposit in respect of the tenancy was €1,000 per month, of which €500 belonged to the Appellant Tenant.
3. That the Appellant Tenant’s rent was paid until the end of March, 2015.
4. That the correct address of the dwelling is: Apartment 27, Alexandra Place, 55 – 58 East Road, Dublin 3.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence presented to it by the Parties, the Tribunal’s findings and reasons therefor are set out hereunder.
7.1 Finding:
The Tribunal finds that the Appellant Tenant has not established that the Respondent Landlord was in breach of obligations such as would entitle the Appellant Tenant to any damages for breach of fixed term lease, unlawful termination of the tenancy or invalid notice of termination.
Reasons:
The Tribunal is satisfied that the fire in the dwelling was caused as a consequence of the actions or omissions of the Appellant Tenant by leaving the hob on and vacating the dwelling for approximately 35 to 45 minutes. The Tribunal is supported in this finding by the account of the events provided by the Appellant Tenant. The Tribunal is also satisfied that the dwelling was not habitable as a consequence of the actions or omissions of the Appellant Tenant and the resulting fire. The Tribunal finds that it became necessary for the Appellant Tenant to reside elsewhere but that this was not caused by any fault or negligence on the part of the Respondent Landlord. The Appellant Tenant found a new dwelling to live in as of the 3 April 2015 before the damage to the dwelling was repaired or could have been repaired. The Tribunal considers that the Appellant Tenant mitigated any loss he may have suffered as a result of any refusal by the Respondent Landlord to allow him to live in the dwelling in the immediate aftermath of the fire. The Tribunal accepts the evidence on behalf of the Respondent Landlord that the dwelling was uninhabitable for a period, until the repairs were completed, as a consequence of the Appellant Tenant’s actions or omissions.
Furthermore, the Tribunal is satisfied that the Appellant Tenant had adequate opportunity to remove his belongings from the dwelling, in particular valuable belongings, on the 26 March 2015 prior to the remaining items being removed by the Respondent Landlord’s Representative on the 1 April, 2015. The Tribunal is also satisfied that vacant possession of the dwelling was required for the purposes of repairing the damage to the dwelling caused by the fire and that the Appellant Tenant was provided sufficient opportunity to remove his belongings. In the absence of any independent evidence as to the condition of the Appellant Tenant’s belongings prior to the fire, and given the fact that the door to the dwelling was open for a number of days following the fire, as a result of the door having to be broken down, the Tribunal are not satisfied that the alleged damage to the Appellant Tenant’s belongings was caused by the Respondent Landlord’s Representatives or that the Respondent Landlord should be liable for this alleged loss or that the Respondent Landlord should be liable for damages for any alleged missing items. Accordingly, the Tribunal is satisfied that the Appellant Tenant has not adduced sufficient evidence to support his claim of being entitled to damages.
7.2 Finding:
The Tribunal finds that the Respondent Landlord has justifiably retained the Appellant Tenant’s deposit of €500.
Reasons:
The Tribunal is satisfied that the fire in the dwelling was caused as a consequence of the actions of the Appellant Tenant, in leaving the dwelling with the hob switched on, and that the damage caused to the dwelling was beyond normal wear and tear. Thus the Tribunal considers that the Appellant Tenant was in breach of obligations under section 16(f) of the Residential Tenancies Act in this respect. From an assessment of the evidence as adduced at the Tribunal Hearing including the level of damage exhibited in the photographic evidence the Tribunal has assessed that the reasonable cost of repair to the dwelling significantly exceeds the amount of the deposit and also the total amount claimed by the Appellant Tenant.
The Tribunal is also satisfied that the net matter for determination before it in this respect is whether or not the Appellant Tenant is entitled to the return of the deposit. The Tribunal considers that he has not shown sufficient evidence to justify an entitlement to the return of the deposit and finds accordingly. The finding of the Tribunal and the Order in this case is without prejudice to any further claim the Respondent Landlord may have in any separate legal process in this respect.
7.3 Finding:
The Tribunal finds that the tenancy of the dwelling was terminated abruptly in a manner not in compliance with the provisions of the Act of 2004. However Tribunal makes no award to the Appellant Tenant in this regard.
Reasons:
The tenancy of the dwelling was terminated as a necessity following the occurrence of a fire as a consequence of certain actions or omissions on the part of the Appellant Tenant. The Tribunal accepts that it was not feasible on the Respondent Landlord’s part to allow the Appellant Tenant remain in occupation for a number of practical reasons including the possibility of fumes, unavailability of electricity and other potential unknown factors in such circumstances. The Tribunal has noted that the Appellant Tenant found temporary accommodation immediately and further mitigated his losses rapidly having procured alternative living accommodation on 3 April 2015.
7.4 Finding:
The Tribunal finds that the Appellant Tenant’s claim in respect of anti-social behaviour on the part of the Respondent Landlord’s agent is not upheld.
Reasons:
The Appellant based his claim in this regard upon allegations relating to an occasion when the Appellant Tenant was collecting some of his items of property from a storeroom and that an agent of the Respondent Landlord allegedly pushed him out of the room. The Tribunal considers that the evidence of such incident was not sufficient to establish such activity. The Tribunal also has had regard to the provisions of s. 16 of the Act which places an obligation on the tenant and not on the landlord of a dwelling in regard to such anti-social behaviour. The Tribunal considers that such activity on the part of an Agent of the Respondent Landlord in the circumstances as described does not come within the meaning or scope of s. 16 and s. 17 of the Act.
8. Determination:
Tribunal Reference TR0415-001131
In the matter of Oluwatoromo Yemi Isaac Ajomale (Tenant) and McGinley Construction Ltd (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Tenancy of the dwelling at Apartment 27, Alexandra Place, 55 – 58 East Road, Dublin 3 was unlawfully terminated. The Tribunal makes no award of damages in this regard.
2. The Appellant Tenant’s claim in respect of unlawful deposit retention and for the return of his deposit in respect of the tenancy is not upheld.
3. The Appellant Tenant’s claim in respect of breach of obligation on the part of the Respondent Landlord including damage to the Appellant Tenant’s property is not upheld.
4. The Appellant Tenant’s claim in respect of anti-social behaviour on the part of an agent of the Respondent Landlord is not upheld.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 22/07/2015.
Signed:
Alamazani v Mackin-Millar
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0716-001859 / Case Ref No: 0516-26428
Appellant Tenant: Roberto Alamazani
Respondent Landlord: Brenda Mackin-Millar
Address of Rented Dwelling: An Mhi, 13A Camac Park, Bluebell , Dublin 12,
D12PT73
Tribunal: James Egan (Chairperson)
Louise Moloney, Eoin Byrne
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 15 September 2016 at 2:30
Attendees: Brenda Mackin-Millar (Respondent Landlord)
Roberto Alamazani (Appellant Tenant)
In Attendance: DTI Stenographers T/A Wordwave
1. Background:
On 17 May 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 10 June 2016. The Adjudicator determined that:
1. The Applicant Tenant’s application, regarding the replacement of a lightbulb, in
respect of the tenancy of the dwelling at An Mhí, 13A Camac Park, Bluebell, Dublin
12, is not upheld;
2. The RTB have no jurisdiction in respect of the Applicant Tenant’s application
concerning alleged anti-social behaviour in respect of the tenancy of the above
dwelling;
3. The Respondent Landlord shall pay the total sum of €800 to the Applicant Tenant,
within 28 days of the date of issue of the Order, being damages for breach of
landlord obligations under s. 12(1)(a) of the Residential Tenancies Act 2004 by
unlawfully interfering with the Applicant Tenant’s right to peaceful and exclusive
occupation of the above dwelling.
Subsequently the following appeal was received from the Tenant on 07 July 2016. The
ground of the appeal is Anti-social behaviour. The appeal was approved by the Board on
08 August 2016
The RTB constituted a Tenancy Tribunal and appointed James Egan, Louise Moloney,
Eoin Byrne as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed James Egan to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 15 September 2016 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received notice of the Tribunal Procedures.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who made the application (the Tenant) would be invited to present his case
and that, that there would be an opportunity for cross-examination by the Respondent
(the Landlord), that the Landlord would then be invited to present her case, and that there
would be an opportunity for cross-examination by the Tenant.
The Chairperson explained that, following the parties’ presentation of their evidence, they
would both be given an opportunity to make final submissions.
The Chairperson stressed that all evidence would be taken on oath or affirmation and
would be recorded by the official stenographer present. The Chairperson reminded the
Parties that knowingly providing false or misleading statements or information to the
Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months
imprisonment or both. The Chairperson asked the Parties if they had any queries about
the procedures, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [pursuant to section 123(3) of the
2004 Act].
The Parties were then sworn in.
5. Submissions of the Parties:
Appellant Tenant’s submission:
The Appellant Tenant succeeded before the Adjudicator in his claim regarding a breach
of landlord’s obligations, namely, that the Respondent Landlord had entered the dwelling
without permission giving rise to a breach of the obligation to allow a tenant peaceful and
exclusive occupation of the dwelling. This gave rise to an order of €800.00 in favour of the
Appellant Tenant. The Appellant Tenant stated that he was pleased with the result but
elaborated that the experience was a humiliating one for him.
The Appellant Tenant recounted the events of the 7th April 2016 when he went out and
returned to find a Tesco delivery basket leaning against the wall of his room. The
Appellant Tenant stated that the Respondent Landlord had been in the dwelling when his
personal items were left in clear sight of anyone who entered and he stated that this was
an embarrassing experience for him. The Appellant Tenant stated that he sent an email
to the Respondent Landlord on the 12th April 2016 protesting at the unauthorised entry to
his dwelling. The Appellant Tenant, through the email, reminded the Respondent
Landlord that he did not wish anyone to enter his dwelling without his permission.
Subsequently, on the 14th April 2016, the Appellant Tenant was stretching in his
underwear when the Respondent Landlord entered the dwelling. The Appellant Tenant
was shocked at the intrusion and told the Tribunal that there was no preceding notification
of a call to the dwelling. The Appellant Tenant denied that he was wearing earphones
which may have blocked out the noise of any knock made by the Respondent Landlord.
The Appellant Tenant stated that the experience was a humiliating one for him. The
Appellant Tenant accepted that there were repairs conducted on his shower in the week
and days leading up to the entry however he indicated that the workmen involved had
always provided him with advance notice, prior to entering the dwelling.
The Appellant Tenant was not successful before the Adjudicator in his claim that the
Respondent Landlord had breached her obligation to maintain the dwelling when a
bathroom light bulb was not changed for three weeks. This matter was not elaborated on
at the Tribunal and the Appellant Tenant responded to the Tribunal, when asked if he was
pursuing this aspect of the appeal, that he had addressed the matter himself. The
Appellant Tenant did not advance any further evidence in respect of this claim.
The Appellant Tenant stated that he appealed the decision of the Adjudicator on the basis
of the refusal of jurisdiction to hear a claim regarding anti social behaviour. The Appellant
Tenant stated that the claim before the Tribunal was distinguishable from Tribunal case
TR 1215 – 1250 because that case concerned a different co-tenant who had been
engaged in anti social behaviour. The Appellant Tenant stated that he was aggrieved and
insulted by the behaviour of his co-tenants and that he held the Respondent Landlord
responsible for their actions.
Respondent Landlord’s submission:
The Respondent Landlord stated that she did not appeal the decision of the Adjudicator
and whilst she believed that the award for the breach of obligation regarding the peaceful
and exclusive occupation of the dwelling was excessive, she decided not to appeal.
In respect of the 7th April 2016, the Respondent Landlord stated that she entered the
Appellant Tenant’s dwelling to leave in a Tesco delivery basket that he had left in the
kitchen. The Respondent Landlord stated that she told the Appellant Tenant that she
would return the basket to his room on the morning of the entry. The Respondent
Landlord accepted that she received the email from the Appellant Tenant dated the 12th
April.
The Respondent Landlord stated that in the week preceding her entry to the dwelling on
the 14th April 2016 that there were works ongoing at the dwelling to carry out repairs to
the Appellant Tenant’s shower. The Respondent Landlord stated that the shower was
leaking into the dwelling below the Appellant Tenant’s and the leak had interfered with the
fire alarm. This was confirmed through a schedule of emails between the parties which
included an option for the Appellant Tenant to use another vacant dwelling for showers or
if he chose, to live in. The Respondent Landlord accepted that she entered the dwelling to
ascertain if the shower repairs had been successful. Further to this, the Respondent
Landlord stated that there was an issue concerning the safety of the other tenants in the
house in circumstances where the fire safety equipment was jeopardised by the original
leak. However, she accepted that the Appellant Tenant had been using another shower
during the period of its repair.
The Respondent Landlord accepted that she should not have entered the dwelling
without the permission from the Appellant Tenant and that this was particularly the case
given the previous unauthorised entry.
6. Matters Agreed Between the Parties
The parties agreed the address of the dwelling being; An Mhi, 13A Camac Park, Bluebell,
Dublin 12. The parties agreed that rent was in the sum of €600.00 payable every four
weeks in advance at the time of the dispute. The Respondent explained that the rent had
subsequently increased however this is not material to the present dispute. The tenancy
commenced on the 2nd February 2015. The tenancy was ongoing.
7. Findings and Reasons:
Finding:
The Tribunal has no jurisdiction to consider the issues of anti social behaviour and the
breach of the obligation regarding the peaceful and exclusive occupation of the dwelling
in respect of the actions of co-tenants at the house containing the dwelling.
Reason:
In advance of the Tribunal, the Tribunal reviewed the contents of case number TR 1215 –
1520. The Tribunal raised the concern with the parties to the dispute and heard the
submissions made in respect of the appeal. Tribunal case number TR 1215 – 1520
concerned the identical parties and identical facts to the current case. This encompassed
the Respondent Landlord’s failure to enforce the obligations of the other tenants of the
house where the dwelling is located. The Tribunal noted that all complaints regarding the
failures of the Respondent Landlord were addressed fully by the previous Tribunal TR
1215 – 1520, with substantial evidence having been given during that hearing, with no
distinction being made between the other tenants. In circumstances where that alleged
failure was grounded on the identical set of facts that give rise to the current Tribunal, the
Tribunal is of the respectful view that to consider the facts that a prior Tribunal had
considered over a two day hearing, with the prospect of imposing an award of damages
against the Respondent Landlord for the same alleged failure, would be prejudicial to the
Respondent Landlord’s position that would give rise to an injustice occurring.
In addition to the prejudice to the parties, the Tribunal does not have jurisdiction to open
or determine a case which has already been the subject of the dispute resolution process
as governed by the Residential Tenancies Act 2004 (as amended). In particular where a
Tribunal has already determined that the Appellant Tenant’s case regarding anti-social
behaviour should fail, the current Tribunal cannot be used to appeal that decision.
Finding:
The appeal of the Appellant Tenant against the finding that the Respondent Landlord did
not comply with her obligations to maintain the dwelling is not upheld.
Reason:
The Appellant Tenant conceded that he addressed the matter himself. In the absence of
any further evidence regarding the light bulb at the dwelling, the Tribunal is satisfied that
the appeal should not succeed.
Finding:
The Tribunal finds that the Appellant Tenant was not allowed peaceful and exclusive
occupation of the dwelling by the Respondent Landlord, in particular in April 2016. The
Tribunal is satisfied that this caused the Appellant Tenant inconvenience and stress
which merits an award of damages in the sum of €800.00.
Reason:
The Tribunal notes that the Respondent Landlord entered the dwelling unlawfully on the
7th April 2016 when she was returned a Tesco delivery basket. The Tribunal notes that
there was no independent evidence submitted by text message, or otherwise, to
demonstrate that the Respondent Landlord had requested the Appellant Tenant’s
permission to enter the dwelling. The Tribunal accepts that the entry had the impact of
interfering with the Appellant Tenant’s peaceful and exclusive occupation of the dwelling.
The Tribunal acknowledges the innocent explanation from the Respondent Landlord
however the entry was sufficient to prompt an email from the Appellant Tenant reminding
her of her obligations as a landlord. The entry on the 14th April by the Respondent
Landlord was a further unauthorised access and is aggravated by the fact that the
Appellant Tenant was present in only his underwear, by the email reminding the
Respondent Landlord of his concerns of an unlawful entry and by the fact that there was
no prior communication of the Respondent Landlord’s intention to enter the dwelling. In
particular, the Tribunal notes that the actions of the Respondent Landlord could have
given the Appellant Tenant the impression that the Respondent Landlord was aware of
her obligations but was nonetheless going to act in contravention of those obligations, in
light of the email sent, such that this exacerbated the nature of the breach and the loss
suffered. The Tribunal notes that the existence of works at the dwelling in the days and
week leading up the entry does appear to support the Respondent Landlord’s explanation
however the Tribunal accepts that the Appellant Tenant’s peaceful occupation was
interfered with. In those circumstances, the Tribunal is satisfied that damages of €800.00
for the breach of the Respondent Landlord`s obligations under the Act and in particular
Section 12(1) (a) thereof is appropriate in light of the stress and inconvenience suffered
by the Appellant Tenant.
In light of the absence of any evidence being submitted in respect of the means of the
Respondent Landlord, but having regard to the amount of rent being received monthly by
her and having regard to the right of the Appellant Tenant to a prompt remedy, the
Tribunal is satisfied that it is appropriate to allow 28 days for payment of the sum of
damages awarded.
8. Determination:
Tribunal Reference TR0716-001859
In the matter of Roberto Alamazani (Tenant) and Brenda Mackin-Millar (Landlord)
the Tribunal in accordance with section 108(1) of the Residential Tenancies Act
2004, determines that:
The Appellant Tenant’s application, regarding the Respondent Landlord’s obligation to
maintain the dwelling, in respect of the tenancy of the dwelling at An Mhí, 13A Camac
Park, Bluebell, Dublin 12, is not upheld;
The RTB have no jurisdiction in respect of the Appellant Tenant’s application
concerning alleged anti-social behaviour and the Respondent Landlord’s obligations
therein in respect of the tenancy of the above dwelling;
The Respondent Landlord shall pay the total sum of €800 to the Appellant Tenant,
within 28 days of the date of issue of the Order, being damages for breach of landlord
obligations under s. 12(1)(a) of the Residential Tenancies Act 2004 by unlawfully
interfering with the Applicant Tenant’s right to peaceful and exclusive occupation of the
dwelling in respect of the tenancy of the above dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
20 September 2016.
Signed:
James Egan Chairperson
For and on behalf of the Tribunal.
Ashton v Lambert
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1216-002090 / Case Ref No: 1016-29584
Appellant Landlord: Darren Ashton
Respondent Tenant: John Lambert, Julie Anne McMulkin, Julie-Anne
McMulkin
Address of Rented Dwelling: Ashtons Cottage, Brittas, Tagoat, Rosslare
Harbour, Co Wexford,
Tribunal: Owen Donnelly (Chairperson)
Roderick Maguire, Suzy Quirke
Venue: Room G.02, Department of the Environment,
Newtown Road, Wexford
Date & time of Hearing: 24 January 2017 at 2:30
Attendees: Karol Jackson (Appellant Landlord’s
Representative)
In Attendance: RTB appointed Recording Technician, DTI
Wordwave
1. Background:
On 11 October 2016 the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 24 November 2016. The Adjudicator determined that
Application abandoned.
Subsequently the Landlord submitted an Appeal Application Form on the 01 January
2016. The grounds of the appeal are Breach of fixed term lease and Other. The appeal
was approved by the Board on 02 December 2016.
The RTB constituted a Tenancy Tribunal and appointed Owen Donnelly, Roderick
Maguire, Suzy Quirke as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Owen Donnelly to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 14 March 2017 the Tribunal convened a hearing at Room G.02, Department of the
Environment, Newtown Road, Wexford.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Landlord’s representative to identify herself and to confirm
that she continued to be authorised to represent the Landlord before the Tribunal. The
Chairperson confirmed that Ms Jackson had personally received the relevant papers from
the RTB in relation to the case and that she had received the RTB document entitled
“Tribunal Procedures”.
The Chairperson explained that the hearing would proceed in the absence of the Tenants
and that Ms Jackson would be given the opportunity to make submissions and might be
asked questions by the Tribunal arising from same. The Tribunal confirmed that while the
Tribunal was a formal procedure, it would be held in as informal a manner as was
possible.
The Chairperson confirmed that Ms Jackson’s evidence would be taken on oath or
affirmation and would be recorded by the official stenographer present. Ms Jackson was
informed that knowingly providing false or misleading statements or information to the
Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months
imprisonment or both.
The Chairperson also reminded Ms Jacksons that the hearing was de novo and was her
last opportunity to put all facts before the Tribunal and that the only right of appeal arising
from the hearing, and the subsequent issuing of a Determination Order, was an appealed
to the High Court on a point of law only.
Ms Jackson was sworn in.
5. Submissions of the Parties:
Ms Jackson confirmed that the Landlord resides in the United Kingdom and that her office
managed the Dwelling on his behalf. She confirmed that she met with Ms McMulkin and
her children prior to the signing of the lease and met Mr. Lambert when the lease was
signed at the commencement of the tenancy. An unsigned version of the lease is
continued in Tribunal File 2 and confirms that rent was €600.00 per month and that a
security deposit of €600.00 was payable on signing. The term of the tenancy was for
twelve months commencing the 2 November 2015. Ms Jackson confirms that both
Tenants signed the lease and that she witnessed same. Ms Jackson stated that
everything appeared to be in order during the early part of the tenancy and that the
Tenants engaged with her with respect to matter that needed to be attended to. Ms
Jackson stated that there was no indication that anything was amiss or that the Dwelling
needed to be inspected. The rent was paid monthly by Ms McMulkin.
In July 2016 Ms Jackson received a phone call from Ms McMulkin confirming that she
had left the property due to domestic issues. In the circumstances, Ms McMulkin’s
vacation of the Dwelling was accepted by Ms Jackson. The rent for the month of July was
paid by Mr. Lambert.
In early August 2016 Ms Jackson received another phone call from Ms McMulkin in which
the latter notified her that she had returned to the Dwelling to collect some belongings
and that a window was broken and that the dogs had been allowed into the Dwelling. Ms
Jackson tried unsuccessfully to contact Mr. Lambert and in mid August 2016 called to the
Dwelling where she noted that various items of office equipment were dumped outside
the Dwelling and that a window in the sunroom was broken. Ms Jackson noted that the
inside of the Dwelling was in a mess and she let herself into the Dwelling to further
investigate.
Ms Jackson states that the dogs were no longer in the house but clearly had been as the
furniture and floor were covered in dog urine and faeces. Ms Jackson noted that drawers
were open, and contents scattered, and that there was evidence of mice faeces all over
the kitchen and kitchen appliances. Ms Jackson stated that the smell was overpowering
and that Mr. Lambert appeared to have abandoned the Dwelling. Ms Jackson called the
Gardaí. Ms Jackson produced numerous photographs taken both before the tenancy
commenced and after she had re-entered same. These are contained in Tribunal Case
File 2 and Ms Jackson took the Tribunal through each photograph.
Ms Jackson stated that she contacted Ms McMulkin at this time to ask about the Dwelling
and to see if she wished to collect any of the personal items that has been left behind. Ms
Jackson stated that Ms McMulkin confirmed that she did not. Ms McMulkin also stated
that she was not responsible for the state of the Dwelling and that same was caused by
Mr. Lambert letting the dogs into the Dwelling after she had been forced to leave. An email
sent by Ms McMulkin to the RTB on the 30 November 2016, and contained in
Tribunal Case File 1, reiterates this position. Ms Jackson stated that she believed that Mr.
Lambert was responsible for the damaged caused to the Dwelling.
Ms Jackson stated that she had first-hand knowledge of the pre-tenancy contents of the
Dwelling and that a number of items of original furniture were missing and others items
were so damaged by dog/mouse urine and faeces that they were unsalvageable and had
to be thrown out. She provided the following list of items with associated replacement
cost, for which vouching was provided:
• 3 single mattresses (damaged by dogs): €390.00 (€130.00 x 3)
• 2 double mattresses (1 damaged by dogs: 1 missing): €300.00 (€150.00 x 2)
• 1 double bed frame (missing): €90.00
• Replacement of carpets (damaged by dogs): €300.00
• Replacement of microwave (due to mouse faeces): €65.00
• Replacement of kettle (due to mouse faeces): €15.00
• Replacement of toaster (due to mouse faeces): €30.00
• Replacement of Sofa (damaged by dogs): €489.99
• Broken window repair: €115.00
Given the state in which the Dwelling was left, the Landlord and his wife had to come to
Ireland to view and clean same. They were not financially able to cover the cost of hiring
professional cleaners and undertook the work themselves. The following additional
expenses are therefore being sought by the Landlord:
• Labour for four days cleaning: €800.00
• Flights from United Kingdom: €112.00
• Hotel: €110.00
• Car Diesel and parking: €160.00
• Cleaning products: €20.00
• Miscellaneous expenses: €60.00
• Skip hire: €269.99
The Landlord was also not able to afford to replace all of the damaged/missing furniture
and as a result could not re-let the Dwelling during the remainder of the tenancy or
thereafter. Mr Lambert vacated the Dwelling on an unknown date in late July/early August
2016, without notice. The Landlord therefore claims the unpaid rent for the months of
August, September and October, being the remainder of the tenancy, and giving a total
sum of €1,800.00 (€600.00 x 3).
The total sum claimed by the Landlord is therefore €5,126.98.
6. Matters Agreed Between the Parties
Not applicable
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by Ms Jackson at hearing, the Tribunal’s findings and reasons are set out
hereunder.
Finding: Ms McMulkin’s early vacating of the Dwelling and associated termination of the
lease was acknowledge and accepted by the Landlord, via his agent, Ms Jackson.
Reasons: Ms Jackson gave evidence that Ms McMulkin notified her that she had left the
Dwelling for stated reasons and was unable to return. This was, in the circumstances,
accepted by Ms Jackson.
Finding: Ms McMulkin bears no responsibility for the damaged caused to the Dwelling.
The sole responsibility for same rests with Mr. Lambert.
Reasons: In her contemporaneous conversation with Ms Jackson, and later by way of
email to the RTB, Ms McMulkin states that she was not responsible for the damage to the
property and that same was caused by Mr. Lambert after she had left. It was Ms
McMulkin who notified Ms Jackson of the damage to the property resulting from Mr
Lambert allowing the dogs into same. Ms Jackson confirmed that she believes that Mr.
Lambert is responsible for the damage caused to the Dwelling.
Finding: Mr. Lambert shall pay to the Landlord the sum of €4,526.98 within fourteen days
of the date hereof. The said sum represents €3,326.98 being the cost of, and associated
with, damage caused by Mr. Lambert to the Dwelling in excess of normal wear and tear
and for breach of his obligations pursuant to Section 16(f) of the Residential Tenancies
Act, 2004, together with the sum of €1,800.00 unpaid rent to the end of the tenancy, and
having deducted the entire of the justifiably retained security deposit of €600.00 in respect
of the tenancy of the dwelling at Ashtons Cottage, Brittas, Tagoat, County Wexford.
Reasons: The Landlord, via his agent Ms Jackson, has provided a list of
damaged/missing items and the replacement costs of same. The Landlord has provided
evidence of sums reasonably expended by him in returning to Ireland to view and clean
the property. Mr Lambert vacated the Dwelling three months early without notice and as a
result of his action the Landlord was unable to re-let the Dwelling. No evidence was
provided to the Tribunal to indicate which of the Tenants paid the deposit and neither
Tenant has sought repayment of same. In light of the evidence presented at the hearing
the Landlord is entitled to retain the deposit in full.
8. Determination:
Tribunal Reference TR1216-002090
In the matter of Darren Ashton (Landlord) and John Lambert, Julie Anne McMulkin,
Julie-Anne McMulkin (Tenant) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
1. Julie Anne McMulkin’s early vacating of the Dwelling and associated termination of
the lease was acknowledge and accepted by the Landlord, via his agent, Ms Jackson.
2. Julie Anne McMulkin bears no responsibility for the damaged caused to the
Dwelling. The sole responsibility for same rests with Mr. Lambert.
3. John Lambert shall pay to the Landlord the sum of €4,526.98 within fourteen days of
the date hereof. The said sum represents €3,326.98 being the cost of, and associated
with, damage caused by Mr. Lambert to the Dwelling in excess of normal wear and
tear and for breach of his obligations pursuant to Section 16(f) of the Residential
Tenancies Act, 2004, together with the sum of €1,800.00 unpaid rent to the end of the
tenancy, and having deducted the entire of the justifiably retained security deposit of
€600.00 in respect of the tenancy of the dwelling at Ashtons Cottage, Brittas, Tagoat,
County Wexford.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
31 March 2017.
Signed:
Owen Donnelly Chairperson
For and on behalf of the Tribunal
Residential Tenancies Board
Bourke v Madigan
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001726 / Case Ref No: 0316-24798
Applicant Tenant: Paul Bourke
Respondent Landlord: Marie Madigan
Address of Rented Dwelling: Thornton, Kilsallaghan , Dublin,
Tribunal: Brian Murray (Chairperson)
Dairine Mac Fadden, Thomas Reilly
Venue: Board Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 01 June 2016 at 10:30
Attendees: Marie Madigan (Respondent Landlord)
Stephen Madigan (Respondent Landlord’s witness)
Paul Bourke (Appellant Tenant)
In Attendance: Stenographer
1. Background:
On 10 March 2016 the Landlord made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 24 March 2016. The Adjudicator determined that:
(a) The Notice of Termination served on 11th November 2015 on behalf of the
Applicant Landlord upon the Respondent Tenant in respect of the tenancy of the
dwelling at Thornton, Kilsallaghan, County Dublin is valid.
(b) The Respondent Tenant and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 14 days of the date of
issue of this Order.
(c) The Respondent Tenant shall pay the total sum of €200 to the Applicant
Landlord within 14 days of the date of issue of this Order, being damages for
overholding in respect of the tenancy of the above dwelling.
(d) The Respondent Tenant shall continue to pay rent as it falls due from 24th
March 2016 to the Applicant at the rate of €800 per month or proportionate part
thereof at the rate of €26.30 per day, unless lawfully varied, and any other charges
as set out in the terms of the tenancy agreement for each month or part thereof, until
such time as he vacates the above dwelling.
(e) The Applicant Landlord shall refund the entire of the security deposit of €800
to the Respondent Tenant, upon the Respondent Tenant vacating and giving up
possession of the above dwelling, less any amounts properly withheld in accordance
with the provisions of the Act.
Subsequently the following appeal was received from the Tenant on 19 April 2016. The
ground of the appeal is Invalid Notice of termination. The appeal was approved by the
Board on 06 May 2016
The RTB constituted a Tenancy Tribunal and appointed Brian Murray, Dairine Mac
Fadden, Thomas Reilly as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Brian Murray to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 01 June 2016 the Tribunal convened a hearing at Board Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
none
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the Appellant would be invited to present his case first; that there would be an opportunity
for cross-examination by the Respondent Landlord’s representatives; that the
Respondent Landlord’s representatives would then be invited to present his case and that
there would be an opportunity for cross-examination by the Appellant’s representative.
The Chairperson explained that, following this, both parties would be given an opportunity
to make final submissions.
The Chairperson stressed that all evidence would be taken on oath or affirmation and
would be recorded by the official stenographer present. The Chairperson reminded the
Parties that knowingly providing false or misleading statements or information to the
Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months’
imprisonment or both. The Chairperson asked the Parties if they had any queries about
the procedures, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only pursuant to section 123(3) of the
2004 Act].
The Parties were then sworn in.
5. Submissions of the Parties:
At the commencement of the hearing, the Tribunal referred to RTB Case File 2 that had
been submitted to the Tribunal on the afternoon of 30 May 2016. The Appellant Tenant
had not had the opportunity to view or consider the documents prior to the hearing. He
objected to the admission of Case File 2 on the basis that he had difficulty with his
eyesight and could not therefore give the contents of the documents adequate
consideration. The documents contained in Case File 2 were a statement from the
Respondent Landlord and copies of 2 previous adjudications arising out of previous
disputes between the Appellant Tenant and the Respondent Landlord. The Respondent
Landlord accepted that these documents were submitted to the Tribunal after the
timeframe allowed for the submission of documents. The Respondent Landlord accepted
that she could provide oral evidence at the hearing of those matters that were contained
in the statement submitted.
These deadlines are required to provide a reasonable time for the RTB to circulate the
papers to the other party and the Tribunal for consideration in advance of a hearing.
These submission deadlines are specified in notification to the parties from the RTB and
documentation may not be accepted for circulation after these deadlines have passed.
The current timeframe for submission of documents, under the rule made by the RTB
under section 109 of the Residential Tenancies Act 2004, other than in exceptional
circumstances, is five days prior to the hearing. Having taken into account the late
lodgment of the submissions, the objections of the Appellant Tenant and the fact that the
documents submitted were 2 previous adjudications and a written statement on behalf of
the Respondent Landlord, the Tribunal decided not to accept the additional documents
submitted by Respondent Landlord. This was on the basis that the two previous
adjudications had no bearing on the matters at issue in the case before the Tribunal and
the fact that the Respondent Landlord was present at the hearing and could therefore
give her own oral evidence as to whatever matters were contained in the written
statement. Therefore, it was determined that, on balance, no prejudice would be suffered
by either party if the additional documents were not accepted by the Tribunal.
Appellant Tenants’ Case:
The Appellant Tenant gave evidence that he was never served with the alleged Notice of
Termination of 11 November 2015. He stated that the first time he became aware of the
issue was when he received a telephone call from the RTB on 13 March 2016 asking him
if he still resided in the Dwelling and when he received the papers regarding the
adjudication held on 24 March 2016. He stated he was unable to attend the adjudication
as he was scheduled for surgery.
He stated that there was no written lease agreement in place and that the tenancy was a
verbal agreement and that there were no break clauses agreed between the parties. He
stated he met the Respondent Landlord for the first time on 1 November in either 2010 or
2011. He stated the rent was always paid in cash up to approximately 12 or 13 months
ago when he began paying the rent into the Respondent Landlord’s bank account.
The Appellant Tenant stated that at the start of the tenancy, he informed the Respondent
Landlord that his intention was to live in the Dwelling on a long term basis and that the
Respondent Landlord assured him that the only time she would terminate the tenancy
was if the house needed to be demolished.
The Appellant Tenant was asked by the Tribunal whether there had been any
communication with the Respondent Landlord between the time of the alleged service of
the Notice of Termination in November 2015 and March 2016. He stated that the only
communication was in December 2015 when Stephen Madigan, the Respondent
Landlord’s son, came onto the property of the Dwelling to put down rat poison. He noted
that Stephen Madigan resided in the neighbouring property to the Dwelling but that there
had been no discussions with him or the Respondent Landlord regarding issues relating
to the tenancy. The Appellant Tenant denied that he had blocked the telephone numbers
of the Respondent Landlord and her son in order to avoid them making contact with him.
Respondent Landlord’s Case:
The Respondent Landlord elected not to cross examine the Appellant Tenant and go
straight into her own direct evidence. She gave evidence that her son Stephen Madigan
served the Appellant Tenant with the Notice of termination on 11 November 2015 in the
front yard of the Dwelling. She stated that she had previously served him with Notices of
Termination in January and May 2015 but that both of the notices had been determined to
be invalid as they did not comply with the Residential Tenancies Act 2004. She stated
that she then sought legal advice in relation to the November 2015 Notice of Termination
to ensure it was compliant with the Residential Tenancies Act 2004.
The Respondent Landlord stated that initially it was agreed that rent was to be paid in
cash but that now the rent was paid into her bank account. She confirmed that she
needed to move back into and reside in the Dwelling herself and that was the reason for
terminating the tenancy. In relation to the issue regarding the placing of rat poison at the
Dwelling, the Respondent Landlord stated that this was carried out by Rentokil.
Cross examination of the Landlord
The Appellant Tenant asked the Respondent Landlord to confirm that the tenancy was
not registered with the RTB until July 2015. She confirmed this was the case.
Evidence of Stephen Madigan:
Mr. Madigan confirmed he was the Respondent Landlord’s son. He stated that he lived in
the adjacent property. He stated that the Appellant Tenant, having been served with 2
previous but invalid Notices of Termination, was aware that the Respondent Landlord was
seeking to terminate the tenancy and as a result he became very evasive and difficult to
contact. He stated that the Appellant Tenant would leave the Dwelling very early in the
morning and would return very late at night which made it extremely difficult to contact
him or effect service of a further Notice of Termination on him. He stated that the
Appellant Tenant had blocked his and the Respondent Landlord’s phone numbers in
order to prevent them making further contact with him. He stated that as a result of this
evasive behaviour, he had in his possession a number of Notices of Termination with
different dates of service on them so that when he was aware that the Appellant Tenant
was on the property of the Dwelling he would be in a position to serve him with a Notice
of Termination with the correct date of service. He stated that on 11 November 2015, he
noticed the Appellant Tenant on the property of the Dwelling and he took a Notice of
Termination with the same date of service on it and he personally served the Notice on
the Appellant Tenant. In relation to the laying of rat poison, Mr. Madigan stated that he
engaged Rentokil due to the presence of rats in the area. He stated the poison was laid in
bait boxes.
Closing submission of the Tenant:
In closing submissions, the Appellant Tenant stated that he was naïve to trust the
Landlord and that he trusted her as she had a respectable job and therefore he paid the
rent in cash and should have requested receipts. He stated the relationship of trust had
since broken down.
Closing submission of the Landlord:
In closing submissions, the Respondent Landlord objected to the Appellant Tenant
referring to her job and stated that this was irrelevant. She submitted that there had been
a history of problems with the Appellant Tenant dating back to 2015. She stated however
that she needed to move into the Dwelling and that the evidence was clear that he had
been served with a Notice of Termination on 11 November 2015 and that the Notice was
valid.
6. Matters Agreed Between the Parties
Rent: €800/month
Deposit: €800 and still retained by the Landlord
The Tenant was still residing in the Dwelling
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons therefor, are set out
hereunder.
7.1 Finding: The Notice of Termination served by, or on behalf of, the Respondent
Landlord on the Appellant Tenant on 11 November 2015 in respect of the tenancy of the
Dwelling at Thornton, Kilsallaghan, Co. Dublin, is valid and that the Respondent Landlord
is entitled to damages in the amount of €750 in respect of the failure by the Appellant
Tenant to comply with the Notice of Termination.
Reason:
1. The Tribunal finds that the tenancy held by the Appellant Tenant is a Part 4 tenancy
within the meaning of the Residential Tenancies Act 2004 and that the Notice of
Termination served by the Landlord on the Tenant on the 11 November 2015 in respect
of the tenancy is valid.
2. The Notice of Termination, a copy of which was presented to the Tribunal in the case
file, complied with the requirements of Parts 4 and 5 of the Act and in particular complies
with Sections 34, 62 and 66. Further, the Tribunal is satisfied that the Notice was
properly served on the Appellant Tenant in accordance with the Act.
3. The Tribunal accepts the evidence that the Landlord intends to move into the
Dwelling.
4. The Tribunal is satisfied that the Respondent Landlord has suffered distress, loss
and inconvenience as a result of the failure by the Appellant Tenant to comply with the
Notice of Termination. In exercise of its powers, therefore, under sub-section (2)(d) of
section 115 of the Act the Tribunal directs that damages in the amount of €750 shall be
paid by the Appellant Tenant to the Respondent Landlord.
8. Determination:
Tribunal Reference TR0416-001726
In the matter of Paul Bourke (Tenant) and Marie Madigan (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
1. The Notice of Termination served on 11 November 2015 in respect of the
tenancy of the Dwelling at Thornton, Kilsallaghan, Co. Dublin is valid;
2. The Appellant Tenant and all persons residing in the above Dwelling, shall
vacate the above dwelling within 90 days of the date of issue of this order;
3. The Appellant Tenant shall pay the sum of €750 to the Landlord within 90
days of the date of the issue of this order, in respect of the damages awarded against
the Appellant Tenant for breach of his obligations under the Act.
4. The Respondent Tenant shall also pay any further rent outstanding from the
1st of June 2016 to the Appellant Landlord at the rate of €800 per month or
proportionate part thereof at the rate of €26.30 per day unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month or part
thereof, until such time as he vacates the above dwelling
5. The Respondent Landlord shall refund the entire of the security deposit of
€800.00 to the Appellant Tenant, on gaining vacant possession of the above Dwelling,
less any amounts properly withheld in accordance with the provisions of the Act.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
07 June 2016.
Signed:
Brian MurrayChairperson
For and on behalf of the Tribunal.
Butler v Martin
Butler v Martin
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0317-002228 / Case Ref No: 0217-31887
Appellant Tenant: Jim Butler
Respondent Landlord: Anthony Martin
Address of Rented Dwelling: Number 31, The Harbour, Market Point, Patrick
Street, Mullingar , Co Westmeath, N91E082
Tribunal: Eoin Byrne (Chairperson)
Owen Donnelly, Helen-Claire O’Hanlon
Venue: Ante Chamber, Athlone Municipal District, Civic
Centre, Church Road, Athlone, Co. Westmeath
Date & time of Hearing: 21 April 2017 at 11:00
Attendees: Jim Butler, Appellant Tenant.
Anthony Martin, Respondent Landlord;
Niamh McGovern, Respondent Landlord’s solicitor
In Attendance: RTB appointed stenographer/logger.
1. Background:
On the 1st February, 2017, the Landlord made an application to the Residential
Tenancies Board (“the RTB”) pursuant to section 76 of the Residential Tenancies Act
2004 (“the Act”). The matter was referred to an adjudication which took place on the 17th
February, 2017. The adjudicator determined that:-
1. The Notice of Termination served on 12th January 2017 by the Applicant Landlord on
the Respondent Tenant in respect of the tenancy of the dwelling at 31 The Harbour,
Market Point, Patrick Street, Mullingar, Co.Westmeath, is valid.
2. The Respondent Tenant and all persons residing in the above dwelling shall vacate
and give up possession of the above dwelling within 21 days of the date of issue of the
Order.
3. The Respondent Tenant shall pay the total sum of €5,246.60 to the Applicant Landlord,
in five consecutive monthly payments of €1,000.00, on the 14th day of each month,
followed by one payment of €246.60 on the 14th day of the immediately succeeding
month, commencing on the 14th day of the month immediately following the date of issue
of the Order, being rent arrears in respect of the tenancy of the above dwelling.
4. The Respondent Tenant shall also pay any further rent outstanding from 17th February
2017, at the rate of €500.00 per month or proportionate part thereof at the rate of €16.44
per day, unless lawfully varied, and any other charges as set out in the terms of the
tenancy agreement for each month or part thereof, until such time as he vacates the
above dwelling.
5. The enforcement of the Order for such payment of €5,246.60 will be deferred and the
total sum owing reduced by the cumulative sum paid in the monthly instalments made by
the Respondent Tenant to the Applicant Landlord on each due date until such time as the
total sum of €5,246.60 has been paid in full.
6. For the avoidance of doubt, any default in the payment of any of the monthly
instalments shall act to cancel any further deferral and the balance due at the date of
default of any such monthly payment shall immediately become due and owing to the
Applicant Landlord.
7. The Applicant Landlord shall refund the entirety of the security deposit of €500.00 to
the Respondent Tenant, upon the Respondent Tenant vacating and giving up possession
of the above dwelling, less any amounts properly withheld in accordance with the
provisions of the Act.
Subsequently a valid appeal was received from the Tenant by the RTB on the 7th March,
2017. The RTB constituted a Tenancy Tribunal (“the Tribunal”) and appointed Eoin Byrne,
Helen-Claire O’Hanlon and Owen Donnelly as Tribunal members, pursuant to sections
102 and 103 of the Act and appointed Eoin Byrne to be the chairperson of the Tribunal
(“the Chairperson”).
The parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing. On the 21st April, 2017, the Tribunal
convened a hearing at 11:00am at the Boardroom, Athlone Civic Offices, County
Westmeath.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
The following documentation was submitted at hearing by the Appellant Tenant:
Letter from RTB to the Appellant Tenant dated the 30th November, 2016;
Letter from the Respondent Landlord to the Appellant Tenant dated the 17th February,
2017;
Copy of bank lodgement receipts from 2014, particular reference to 15th August, 2014.
The following documentation was submitted at hearing by the Respondent Landlord:
Notice of rent arrears dated the 1st March, 2016;
Notice of termination dated the 23rd March, 2016.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed. In particular, he
outlined that the Tribunal was a formal procedure but that it would be held in as informal a
manner as was possible, that the person who appealed (the Appellant) would be invited
to present his case first, that there would be an opportunity for cross-examination by the
Respondent, that the Respondent would then be invited to present their case, and that
there would then be an opportunity for cross-examination by the Appellant. The
Chairperson explained that following this, both parties would be given an opportunity to
make a final submission. He reminded the parties that the hearing was a de novo
hearing.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the parties that as a result of the hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only. The Chairperson provided the
parties with an opportunity to come to an agreement between them but were unable to do
so. The parties were sworn in and the hearing proceeded.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant opened the hearing by outlining that Bashar al-Assad had not cut
off water to any city in Syria and that when a water pumping station in Mosul was hit in a
coalition air strike, ISIL had repaired the plant. He stated that the Respondent Landlord
had cut off his water supply around the 25th January, 2017.
He also alleged that representatives of the Respondent Landlord had visited the dwelling
without permission or notification and attempted to gain access. He asserted that Maeve
Donnelly had trespassed and accessed the dwelling in September, 2014.
In respect of the disconnection of the water, he contended that no leak was ever
observable from his dwelling. He also refuted any suggestion that he was not amenable
to allowing access to the dwelling and relied upon the documentation submitted by both
parties in this respect. He contended that the actions carried out on behalf of the
Respondent Landlord, interfering with Ervia property, was against the law.
In respect of the payments made, he relied upon the receipts provided. He accepted that
only eleven payments had been made in 2013. However, he indicated that there had
been an outlay of €400 on his part in respect of the repair of a water pump and lock. He
stated that he did not have receipts with him and that he did not ask the Respondent
Landlord prior to repairing those items. He indicated that he left voicemails after the works
had been done. As such, he stated that he had not paid for that month as a result of that
outlay.
In respect of the receipt of the notices in December, 2016 and January, 2017, the
Appellant Tenant indicated that he had left the dwelling on the Sunday before Christmas
(the 18th December) and that he was away until the 10th January, 2017. He accepted
that the warning letter of the 19th December had been delivered to the dwelling in the
intervening period, with a hand delivered copy, with no stamp, delivered. In respect of the
notice of termination, he indicated that he could not testify as to his date of receipt, and
that it could have been a week he received the warning notice.
In respect of the water being disconnected, he stated that he had made his angst and
anger apparent to the Respondent Landlord and that it had a serious effect on his
psychiatric health, where he had previously been prescribed anti-depressants by his
doctor. He asserted that he was entitled to damages and that the calculation of same was
a matter for the Tribunal.
In respect of the payments made, he refuted the characterisation of same as being rent.
He asserted that the “lease” purportedly signed in 2011 constituted heads of agreement
only and that no lease was ever given to him. He also indicated that it did not refer to the
Residential Tenancies Act 2004 and further that he had only signed the “guarantee” part
of the document, not the “lease” part. He accepted that he had made payments of €1,000
around that date. He stated that he had moved in prior to that date. He alleged that as he
had never received a lease, he was not a tenant, but was instead a squatter. He also
indicated that the payments he had made should be refunded to him under the Sale of
Goods and Supply of Services Act 1980 as he had never received proper usage of the
dwelling. He alleged that the payments made had been part payment towards the
property, and that there were discussions in respect of him purchasing the dwelling. He
stated that that was why he had previously requested summonses to issue. However,
despite having requested the Tribunal to issue a subpoena to a Niall Cosgrave, the
Appellant Tenant accepted that he had not directly asked Mr Cosgrave to attend. He
stated that Mr Cosgrave would have testified as to writing to the Respondent Landlord in
respect of the characterisation of the payments made. The Tenant did not submit a copy
of any such correspondence. He also contended that a further payment of €500 had been
made by him in August, 2014, which had not been accounted for by the Respondent
Landlord.
The Appellant Tenant asserted that while he was still in occupation of the dwelling,
despite this, he spent most of his time in hotels, where he was unable to use the toilet in
the dwelling without water. He indicated that he had receipts for his outlay, albeit he did
not have them present before the Tribunal. He informed the Tribunal that he intended to
pursue the Respondent Landlord in the Small Claims Court, as he did not believe it was
within the remit of the Tribunal to make an order for payment of hotel accommodation.
In cross-examination, he again refuted the characterisation of the document signed as
being a lease, instead constituting heads of agreement. He stated that he believed the
payments of €500 were made in the belief that he would receive what he was contracting
for, including tax relief on the sums paid. He stated that he had not rented before renting
the dwelling in this case and that upon speaking to his accountant, he was advised that
where Revenue may ask for a lease if tax relief was claimed, and where he contended he
had not received a lease, he thus had not received what he contracted for. He accepted,
however, that he had signed the document in question, albeit under the section headed
“guarantee”. The Tenant also accepted that he had never asked his Landlord for a lease
which he felt might satisfy the requirements of Revenue. He stated that he had stopped
making the monthly payments in 2016 where he had been advised by an Aidan
McGoldrick that an organisation named “Pepper” had acquired rights to the dwelling in
2016. He thus asserted that he believed he was being duped and that Mr Cosgrave had
advised him in person to stop making payments.
The Appellant Tenant thus sought repayment of the sums paid and that, if that was done,
he would give up occupancy of the dwelling. He also sought proof of the entitlement of
the Respondent Landlord to payment. He also contended that he had returned to the
country from Brussels for a prior adjudication hearing, which was ultimately unnecessary,
where the Respondent Landlord had withdrawn the case without notice.
Respondent Landlord’s Case:
The Respondent Landlord submitted that there was an agreement between the parties.
He relied upon the documentation submitted, in particular that signed by the Appellant
Tenant. While he accepted that the document signed was only signed at the bottom,
under the section headed “guarantee”, not at that top, he asserted that it was one
document, not two separate documents, and that there was an agreement to rent the
dwelling. He stated that he had been the owner of the dwelling since 2003.
In respect of the maintenance of the dwelling, he contended that it was standard
procedure for anyone with issues to visit the on-site office, where Ms Donnelly worked.
He asserted that when issues were raised, they were usually repaired within 24 to 48
hours.
In respect of the notices served, he advised the Tribunal that the warning letter was
served in three ways: one by registered post, one by ordinary post and one being hand
delivered by Aidan McGoldrick on the 19th December, and that the registered post copy
was returned. In respect of the notice of termination, he indicated that all had been signed
individually, with one delivered by registered post, one by regular post and one by hand,
by him personally, on the 12th January, 2017. He indicated that Ms Donnelly had noted
his presence in the visitor log on the date in question and that it was not possible to get
into the dwelling otherwise than past security. He also indicated that prior warnings and
notices had been given, including a previous notice of termination dated the 23rd March,
2016, which was subsequently withdrawn. He indicated that a previously application for
dispute resolution had been withdrawn at hearing on the 30th November, 2016.
He contended that the Appellant Tenant did have an obligation to pay rent and that this
had been paid into a bank account. However, he accepted at hearing that a further
payment had been made in August, 2014, which had not previously been accounted for.
Otherwise, he relied upon the figures submitted, and indicated that only €3,000 had been
received in 2016, with no payments having been made in 2017.
In respect of the disconnection of the water, he relied upon the documentation submitted.
He indicated that water was discovered leaking through the light fittings in the dwelling
below and that this ceased when the water supply to the Appellant Tenant’s dwelling was
disconnected. He contended that the correspondence was self-explanatory and that it
was the Appellant Tenant’s obligation to go back to Ms Donnelly to arrange access,
inspection and repair. He stated that if allowed access, appropriate works and repairs
could be carried out.
In cross-examination, he reiterated that a leak was observed through the ceiling in
apartment 24, that directly beneath the Appellant Tenant’s dwelling. He indicated that he
knew photos existed of water damage, albeit he did not have them present. He also
indicated that the accounts submitted were accurate and that the reason for the reversal
of the columns for the accounts for “Jetty” and “Harbour” was a mistake on his part, albeit
the figures were accurate.
Closing statements:
The Appellant Tenant indicated that while he was not legally qualified, he believed the
Respondent Landlord may possibly have a case against the management company of the
dwelling. He indicated that he was seeking repayment of all sums paid by him.
The Respondent Landlord reiterated that there were two issues: the non-payment of rent
and the water ingress. He sought an order for enforcement of the notice of termination, in
light of non-payment of rent, and a finding that there was no breach of obligations in any
respect on his part.
6. Matters Agreed Between the Parties
The parties agreed that the address of the relevant dwelling was 31 The Harbour, Market
Point, Patrick Street, Mullingar, County Westmeath. While there was a dispute over the
characterisation of the sums paid, the parties also agreed what sums had been paid, in
particular that a sum of €502 had been paid on the 15th August, 2014, which was not
originally accounted for in the figures submitted by the Respondent Landlord.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefor, are set out
hereunder.
Finding 1: The Tribunal find there was a tenancy in being between the parties and that
there has been a tenancy since the 3rd June, 2011, that the Appellant Tenant acquired a
part four tenancy as of the 3rd December, 2011, and a further part four tenancy as of the
3rd June, 2015.
Reasons: The Tribunal is satisfied that the parties entered into a tenancy agreement on
or about the 3rd June, 2011. While the Appellant Tenant may only have signed the
“guarantee” part of the document in question, it is clear at all stages that the parties
agreed that they were entering into a tenancy. There is no requirement under the Act for
a tenancy agreement to be in writing. It is clear that the parties entered into an
agreement, that the terms of that agreement included an entitlement of the Appellant
Tenant to occupy the dwelling and an obligation to pay rent, and that the Respondent
Landlord was the person entitled to receipt of that sum. As such, the Appellant Tenant
clearly meets the definition of “tenant” under section 5(1) of the Act, the Respondent
Landlord meets the definition of “landlord” under the same section and the agreement
between them constituted a “tenancy” within the meaning of that term as so defined under
the same section. As such, a tenancy existed, along with the obligations under the Act in
respect of same, including the obligation on the Appellant Tenant to pay to the
Respondent Landlord the agreed rent of €500 per month, unless lawfully varied, in
respect of that tenancy, for so long as it existed. As such, it does not appear to the
Tribunal that, notwithstanding the claim of the Appellant Tenant, the Sale of Goods and
Supply of Services Act 1980 has any application to the legal relationship between the
parties, same being governed by the Residential Tenancies Act 2004, as amended. While
there is some lack of clarity as to the exact date of the commencement of the tenancy,
the best evidence before the Tribunal, being the written memorandum of agreement,
would appear to suggest that same commenced on the 3rd June, 2011. Further, there is
no independent, objective evidence whatsoever before the Tribunal that the payments
could be characterised as anything other than rent. In those circumstances, in
accordance with sections 28, 29 and 41 of the Act, the Tribunal is satisfied that the
Appellant Tenant had a part four tenancy, the protection under the first part four tenancy
commencing on the 3rd December, 2011, and a further part four tenancy, the protection
under that commencing on the 3rd June, 2015.
Finding 2: We find that the Appellant Tenant is in breach of obligations and in arrears of
rent of €5,307.33, as of the date of hearing, and that this sum should be paid to the
Respondent Landlord within 21 days of the date of issue of the Order of the Board.
Reasons: The Tribunal is satisfied that no rent has been paid since that due in July, 2016.
While there was a figure of €502 paid on the 15th August, 2014, that was not originally
accounted for by the Respondent Landlord, there is no objective evidence but that the
other figures outlined by the Respondent Landlord are correct and outline the sums paid
by the Appellant Tenant. As such, the Tribunal accepts the veracity of the accounts as
submitted by the Respondent Landlord and the payments outlined therein, subject to that
one exception. While some small overpayments were made, totalling €5, over the course
of the tenancy, there was one full monthly payment missed in 2013, six months in 2016
and no payments made in 2017. In respect of the claim for deduction in 2013, the
Tribunal are satisfied that the Appellant Tenant was not entitled to deduct the expenses of
€400 from the rent due. There is no evidence whatsoever that the issues were brought to
the attention of the Respondent Landlord before the expenses were incurred; the
obligation on the part of the Respondent Landlord to reimburse a tenant only arises under
section 12(1)(g) where a Landlord has refused or failed to carry out repairs at the time the
Tenant requests him to do so. Leaving aside the other requirements of section 12(1)(g), it
is uncontroverted that same did not happen; accordingly, the Appellant Tenant was not
entitled to deduct those expenses from the rent due, nor entitled, under the Act, to
recompense in this respect. As such, the Tribunal is satisfied that there were €500
arrears from 2013, €3,000 arrears from 2016 and overpayments totalling €5 from 2012
and 2014. As no rent has been paid in 2017, the Tribunal is satisfied that the arrears for
2017 as of the date of hearing are three months and 19 days, being the rent due on the
3rd January, February and March, and 19 days to cover the period from the 3rd April to
the date of hearing, being €500 * 12 / 365 * 19 = €312.33; as such, the total arrears are
€500 (2013) + €3,000 (2016) – €5 (overpayments) + €1,812.33 (2017) = €5,307.33. There
is no evidence that the rent was ever validly reviewed and for so long as the Appellant
Tenant remains in occupation, his liability to pay rent shall continue, at that rate, unless
lawfully varied. In respect of the payment of the sum outstanding, given the length of time
for which arrears have been accumulating, and having regard to the right of the
Respondent Landlord to a prompt remedy, the Tribunal is satisfied that these arrears
should be paid inside 21 days of the date of issue of the Order of the Board.
Finding 3: We find that the notice of termination served by the Respondent Landlord on
the Appellant Tenant on the 12th January, 2017, is valid and that the Appellant Tenant
has been overholding since the expiration of that notice on the 13th February, 2017.
Reasons: The Tribunal is satisfied that the Respondent Landlord served a warning on the
Appellant Tenant as of the 19th December, 2016. This was clearly served in accordance
with section 6 of the Act, as it was hand delivered to the dwelling and posted, both by
regular and registered post. As such, the Tribunal is satisfied that it was properly served
by the Respondent Landlord. Given the forbearance that had been exercised up until that
point by the Respondent Landlord, and the fact a previous notice of termination had been
served and subsequently withdrawn, the Tribunal is satisfied that the period provided in
the warning notice was reasonable in all the circumstances, with particular regard to the
provisions of section 34 of the Act and ground one of the table to that section. As the
Appellant Tenant had a further part four tenancy as of that period, the Tribunal is satisfied
that the Respondent Landlord was required to comply with the provisions of that section
prior to terminating the tenancy. While the Appellant Tenant gave evidence that he was
not in the country from the 18th December to the 10th January, the Tribunal is satisfied
that the notices served were served in accordance with section 6 of the Act and that the
Appellant Tenant has not shown that he did not have sufficient time under section 6(6) to
pay the rent due, prior to the notice of termination; indeed, it is clear that the Appellant
Tenant disputes his obligation to pay any rent whatsoever. As such, the reason for nonpayment
prior to the service of the notice of termination was not that the Appellant Tenant
did not receive reasonable warning in respect of the rent that was due, but that he
contended that he did not have an obligation to pay any rent; even if the Appellant Tenant
had been in the country for the entire time period, and received the warning letter on the
19th December, by his own evidence, he would not have paid any amount of the rent
due. Further, while the signed copy of the warning letter was sent by registered post and
returned undelivered, it is clear the other two copies were served in compliance with the
Act. There is no requirement under the Act for the warning letters in question to be signed
by the Landlord or his agent, simply that the Tenant be warned in writing of his breach of
obligations and be provided with a reasonable time to remedy that breach. As that
occurred in the present case, where section 67(3) of the Act does not apply (as this is a
further part four tenancy), and where the Tribunal is satisfied that the warning period was
reasonable in all the circumstances, the Tribunal is satisfied that the Respondent
Landlord was entitled to serve the notice of termination served on the 12th January, 2017.
The Tribunal is also satisfied that the notice of termination as served complied with all the
requirements of section 62 of the Act and that it was served in compliance with section 6
of the Act, by leaving it directly to the dwelling in question, in accordance with section
6(1)(b) of the Act. As each copy was signed by the Respondent Landlord, there is no
doubt but that the requirements of section 62 were complied with in full by the
Respondent Landlord. Accordingly, where the appropriate notice period of at least 28
days was provided, in accordance with sections 65(3) and 67(2)(aa), the Tribunal is
satisfied that the notice of termination was valid and that the Appellant Tenant has been
overholding since the expiration of the notice period on the 13th February, 2017. In light
of the amount of arrears, the right of the Respondent Landlord to a prompt remedy and
the length of time for which the Appellant Tenant has been overholding, the Tribunal is
satisfied it is appropriate to allow the Appellant Tenant 21 days to vacate the dwelling.
Finding 4: We find that the Respondent Landlord is not in breach of obligations in respect
of the disconnection of the water supply to the dwelling or otherwise.
Reasons: The Tribunal is satisfied that there was a leak from the dwelling in question to
the dwelling below. While there was no direct evidence given on same, there was a large
amount of correspondence submitted in this respect and the Tribunal notes that the
Appellant Tenant does not deny that the dwelling below did suffer some manner of water
ingress. The documentation also shows that the ingress ceased after the water supply to
the dwelling the subject of the tenancy in this case was disconnected. As such, there is
evidence before the Tribunal that the problem was located in the supply to the dwelling
the subject of the tenancy in this case. The documentation submitted, and the evidence
given at hearing by the Respondent Landlord, details significant efforts having been made
by the Respondent Landlord and his representatives to gain access to the dwelling to
examine the dwelling and if necessary repair the leak in question. Where it appears that
the leak would continue were the water supply reconnected, the actions of the
Respondent Landlord in this respect appear entirely logical and do not constitute a
breach of obligations under section 12 of the Act or otherwise, in particular where the
Appellant Tenant has denied access to the dwelling. The correspondence as submitted
evidences genuine efforts on the part of the Respondent Landlord to arrange access and
the demands as made by the Appellant Tenant in that communication for payment of
certain sums do not appear well founded to the Tribunal. Accordingly, where all
reasonable efforts to access the dwelling, investigate the issue and repair the leak have
been made by the Respondent Landlord, and where the Appellant Tenant has been in
breach of section 16(e) of the Act in failing to allow appropriate access to the dwelling, the
Tribunal are not satisfied that there has been any breach of obligations by the
Respondent Landlord in this respect. Similarly, none of the other demands made in
correspondence by the Appellant Tenant appear to have any basis in any breach of the
Act by the Respondent Landlord and no award is made in respect of same. Further, the
Tribunal are satisfied that all visits to the dwelling by or on behalf of the Respondent
Landlord were justified and reasonable in all the circumstances of the present case, and
that the Appellant Tenant has not proved that there was any breach of obligations in this
respect, or that he suffered any loss such as would entitle him to damages.
Finally, the Tribunal are satisfied that it was appropriate to proceed with the hearing,
notwithstanding the absence of certain witnesses before the Tribunal and the alleged
failure of the Tribunal to issue subpoenas in this respect. Under section 105 of the Act,
the Tribunal *may* summon witnesses to appear before it; as such, the power in this
respect is clearly discretionary. In this respect, the Appellant Tenant made bare requests
prior to the hearing to subpoena certain witness; however, where no reasons were
submitted with the requests, and where no reasons for the requests submitted were
forthcoming prior to the hearing, despite a further request having been issued by the
Tribunal to the Appellant Tenant for same, the Tribunal is satisfied that it was not
appropriate to delay the matter further to allow for the subpoenaing of witnesses, but to
proceed on the evidence presented before them.
8. Determination:
Tribunal Reference TR0317-002228
In the matter of Jim Butler (Tenant) and Anthony Martin (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
1. The Notice of Termination served on 12th January 2017 by the Respondent
Landlord on the Appellant Tenant in respect of the tenancy of the dwelling at 31 The
Harbour, Market Point, Patrick Street, Mullingar, County Westmeath, is valid;
2. The Appellant Tenant and all persons residing in the above dwelling shall vacate
and give up possession of the above dwelling within 21 days of the date of issue of the
Order of the Board;
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
04 May 2017
Signed:
3. The Appellant Tenant shall pay the total s
Landlord, within 21 days of the date of issue of the Order of the Board, being rent
arrears in respect of the tenancy of the above dwelling;
4. The Appellant Tenant shall also pay any further rent outstanding from 21st Apr
2017, at the rate of
€16.44 per day, unless lawfully varied, and any other charges as set out in the terms of
the tenancy agreement for each month or part thereof, until such time as he vac
the above dwelling;
5. The Respondent Landlord shall refund the entirety of the security deposit of
to the Appellant Tenant, upon the Appellant Tenant vacating and giving up possession
of the above dwelling, less any amounts properly withheld
provisions of the Act.
2017.
Eoin Byrne
For and on behalf of the
€500.00 per month or proportionate part thereof at the rate of
Chairperson
Tribunal.
sum of
um €5,307.33 to the Respondent
in accordance with the
€500.00
vacates
Cuisle Properties Ltd v Da Silva Lima
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0217-002184 / Case Ref No: 1216-30651
Appellant Landlord: Cuisle Properties Limited
Respondent Tenant: Leonardo Batista Da Silva Lima
Address of Rented Dwelling: Flat 5, 29 Summerhill Parade , Dublin 1, D01K7E5
Tribunal: Dairine Mac Fadden (Chairperson)
Healy Hynes, Suzy Quirke
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 16 March 2017 at 10:30
Attendees: Leonardo Batista Da Silva Lima (Respondent
Tenant)
Luis Borges de Silva (Witness for the Respondent
Tenant)
In Attendance: Recording Technician, DTI Wordwave
Raiza Costa (Interpreter)
1. Background:
On 01 December 2016 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 18 January 2017. The Adjudicator determined that:
1. As no notice of rent increase was served by the Applicant Landlord on the
Respondent Tenant in respect of the tenancy of the dwelling at Flat 5, 29 Summerhill
Parade, D1 the rent increase is invalid.
2. The rent agreed under the initial lease remains in place. The Applicant Tenant
shall continue to pay the current rate of rent to the Respondent Landlord at the rate
of €1,100 per month, unless lawfully varied, and any other charges as set out in the
terms of the tenancy agreement, for each month or part thereof in respect of the
above dwelling.
3. The Respondent Landlord shall pay the total sum of €2,950 to the Applicant
Tenant, for all the tenants of the premises within 35 days of the date of issue of the
Order, being damages for the overpayment of rent, due the Landlord’s failure to
serve a valid notice of rent increase pursuant to s.22 of of the Residential Tenancies
Act 2004.
4.The Applicant Tenant’s application, regarding the Respondent Landlord’s breach of
his obligations under the Act in failing to maintain the premises in respect of the
tenancy of the dwelling at Flat 5, 29 Summerhill Parade, D1 , is not upheld.
Subsequently the following appeal was received from the Landlord on 10 February 2017.
The ground of the appeal is Other. The appeal was approved by the Board on 14
February 2017.
The RTB constituted a Tenancy Tribunal and appointed Dairine Mac Fadden, Healy
Hynes, Suzy Quirke as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Dairine Mac Fadden to be the chairperson of the Tribunal (“the Chairperson”).
On 16 February 2017 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 16 March 2017 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
As there was no appearance by or on behalf of the Appellant Landlord, the appeal was
deemed to be abandoned.
5. Submissions of the Parties:
As there was no appearance by or on behalf of the Appellant Landlord, the appeal was
deemed to be abandoned.
6. Matters Agreed Between the Parties
As there was no appearance by or on behalf of the Appellant Landlord, the appeal was
deemed to be abandoned.
7. Findings and Reasons:
The appeal by the Appellant Landlord in respect of the tenancy of the dwelling at Flat 5,
29 Summerhill Parade, Dublin 1, is abandoned.
Reason: There was no appearance by or on behalf of the Appellant Landlord.
8. Determination:
Tribunal Reference TR0217-002184
In the matter of Cuisle Properties Limited (Landlord) and Leonardo Batista Da Silva
Lima (Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
21
Signed:
March
The Appellant Landlord’s appeal in respect of the tenancy of the dwelling at Flat 5, 29
Summerhill Parade, Dublin 1, is abandoned
Adjudicator still stands.
2017
2017.
.
Dairine Mac Fadden
For and on behalf of the Tribunal.
Chairperson
and as such the decision of the
For and on behalf of the Tribunal.
Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001503 / Case Ref No: 1015-21960
Appellant Tenant: Wayne Duffy, Carmel Murphy
Respondent Landlord: Ken Tyrrell (Receiver), Akinade Adebowale
Address of Rented Dwelling: 20 Deerhaven Close, Clonee , Dublin 15,
D15W5Y2
Tribunal: Rosemary Healy Rae (Chairperson)
Eoin Byrne, Peter Shanley
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 09 February 2016 at 2:30
Attendees: Wayne Duffy (Appellant Tenant)
Carmel Murphy (Appellant Tenant)
Rachel Cronin (Respondent Receiver’s
Representative)
AndrewMaslin (Respondent Receiver’s
Representative)
In Attendance: DTI Stenographer/Logger
1. Background:
On the 27th October 2015 the Landlord made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on the 17th November 2015. The Adjudicator
determined that:
(1) The Notice of Termination served on 9th June 2015 by the Receiver’s Agent
on the Respondent Tenants in respect of the tenancy of the dwelling at 20
Deerhaven Close, Clonee, Dublin 15, D15W5Y2 is valid.
(2) The Respondent Tenant and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of this Order.
(3) The Respondent Tenant shall pay the sum of €10,800 to the Applicant
Receiver in ten consecutive monthly payments of €1,000 on the 28th day of each
month, followed by one payment of €800 on the 28th day of the immediately
succeeding month, commencing on the 28th day of the month immediately following
the date of issue of this Order, being rent arrears of €10,800.
(4) The enforcement of this Order for such payment of €10,800 will be deferred
and the total sum owing reduced by the cumulative sum paid in the monthly
instalments made by the Respondent Tenant to the Applicant Landlord on each due
date until such time as the total sum of €10,800 has been paid in full.
(5) For the avoidance of doubt, any default in the payment of any of the monthly
instalments shall act to cancel any further deferral and the balance due at the date of
default of any such monthly payment shall immediately become due and owing to the
Applicant Landlord.
(6) The Respondent Tenant shall also pay any further rent outstanding from the
17th November 2015 [date of the hearing] to the Applicant at the rate of €900 per
month or proportionate part thereof at the rate of €29.59 per day, unless lawfully
varied, and any other charges as set out in the terms of the tenancy agreement for
each month or part thereof, until such time as he vacates the dwelling.
This Order was duly made by the Private Residential Tenancies Board. Subsequently a
valid appeal was received from the Tenants on the 15th December 2015 and this was
approved by the Board on the 21st December 2015.
The PRTB constituted a Tenancy Tribunal and appointed Rosemary Healy-Rae, Eoin
Byrne and Peter Shanley as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Rosemary Healy-Rae to be the chairperson of the Tribunal (“the
Chairperson”).
On the 29th December 2015 the Parties were notified of the constitution of the Tribunal
and provided with details of the date, time and venue set for the hearing.
On the 9th February 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
1. Two receipts from Knights Facility Services Ltd. dated the 31st December 2015
submitted by the Respondent Landlord’s Representatives.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellants) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent Landlord’s
representatives; that the Respondent Landlord’s representatives would then be invited to
present their case and that there would be an opportunity for cross-examination by the
Appellants.
The Chairperson explained that, following this, both parties would be given an opportunity
to make final submissions.
The Chairperson stressed that all evidence would be taken on oath or affirmation and
would be recorded by the official stenographer present. The Chairperson reminded the
Parties that knowingly providing false or misleading statements or information to the
Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months
imprisonment or both. The Chairperson asked the Parties if they had any queries about
the procedures, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [pursuant to section 123(3) of the
2004 Act].
The Parties were then sworn in.
5. Submissions of the Parties:
Evidence on behalf of the Appellant Tenants
The second named Appellant Tenant stated that they have been looking for alternative
accommodation but have not been able to source another property. They have also been
in contact with the Department of Social Protection.
She accepted that they had received correspondence from Michael Duignan Properties
on the 6th March 2015 regarding the appointment of the Receiver. She said that this was
the first time that the Tenants became aware of the appointment of the Receiver. She
also stated that Michael Duignan Properties advised them not to pay any further rent.
She stated that Andrew Maslin of Aramark Property had attended at the property to take
photos and that he had advised them that the dwelling would be put up for sale. She
showed him the work they had done at the dwelling including the provision of carpets and
a washing machine and that they had paid for everything. She said they told Mr. Maslin
that the gas system needed repair and she said this work was subsequently done.
However, the gas fire on the wall in the sitting room was inadvertently disconnected in
December 2015 and that this matter has still not been rectified.
She stated that in April 2015 AndrewMaslin had agreed to accept the rent allowance, that
he filled in the rent supplement form for them and that they left the form with him. She
said that they heard nothing further in relation to their rent supplement application. Prior
to this, rent supplement of €726 was paid to the Landlord and the balance of rent of €174
was paid by the Tenants. She said that the Landlord called to the door to collect the last
rent payment. She could not remember when they made their last payment of rent to the
Landlord but she said that it would have been shortly prior to March 2015.
She said that she received a telephone call from Rachel Cronin of Aramark Property prior
to the issue of the Notice of Termination in June 2015. She said that she told Ms. Cronin
that they had nowhere else to go and she said Ms. Cronin also agreed to accept the rent
supplement. She said she contacted Threshold and told them about the works they had
carried out at the dwelling including painting, carpets and washing machine repairs. She
said Mr. Maslin had fixed the gas and nothing else and that the gas fire on the sitting
room wall was never reconnected. She said they had no telephone number for the
Landlord and that it was very difficult to contact him.
She said that they never contacted the Department of Social Protection regarding the
outcome of the rent supplement application.
She said that they contacted a Health Inspector in Fingal County Council and they
received a report from him dated the 14th October 2015.
She accepted that a notice of termination had been served on them. She said it is
impossible to source alternative accommodation because many Landlords are refusing to
accept rent supplement Tenants.
Evidence on behalf of the Respondent Landlord
The Receiver’s representative Ms. Cronin gave evidence of the appointment of the
Receiver on the 18th November 2014. She said that the Tenants were notified of the
appointment by letter on the 19th November 2014. A second letter was issued on the
26th November 2014 and this was followed up by telephone contact with the Tenants.
She said that the Tenants were upset about the whole situation and a decision was taken
to let things “cool down” for a few weeks. She said that ultimately M D Properties were
instructed to deal with the matter on the 27th March 2015 and that they made direct
contact with the Tenants. She said that at that point the first named Appellant Tenant
agreed to co-operate with the receivership.
She said that Andrew Maslin attended at the dwelling on the 20th April 2015. She said
that the Tenants refused to give him details of the monthly rent and their PPS number so
that the tenancy could be registered with the PRTB. He said that the only detail supplied
by the Tenants was that a deposit of €900 had been paid by them to the Landlord.
Ms. Cronin said that Aramark Properties were instructed to sell the dwelling and a notice
of termination was served on the 9th June 2015. The maximum notice of 112 days was
given because Aramark Properties were unaware of when the Lease commenced. She
said that on the 11th June 2015 they were notified by the Tenants of the defects with the
gas boiler and heat exchanger.
She said that they subsequently received a letter from Fingal County Council dated the
23rd October 2015 regarding the standard and maintenance of the dwelling. She stated
that at this point in time no rent was being paid and the Tenants were overholding. She
said that they arranged for all urgent problems to be addressed by Knights Facility
Services. A defective dial on the cooker hob was replaced, a fire blanket was supplied, a
vent was replaced, smoke alarms fitted and the gas fire installation was checked. In this
regard she referred the Tribunal to the receipts from Knights Facility Services and pointed
out that all these matters were addressed after the termination date.
The Receiver’s representatives stated that it is up to the Tenant to lodge the rent
supplement application and that Mr. Maslin could not have signed the application
because he did not have the Tenants PPS numbers, photo ID, details of the rent payable
and that they had no tax receivership number at that stage.
In cross-examination the Receiver’s representatives stated that they were never notified
that the gas fire had been disconnected and that they only became aware of this at the
Adjudication hearing. Mr. Maslin stated that when he visited the dwelling in April 2015 the
Tenants were very vague about the details of the monthly rent and they only clarified that
a deposit of €900 had been paid to the Landlord. The second named Appellant Tenant
stated that the dwelling had been broken into and that they had requested that an alarm
be installed and they were constantly trying to contact Mr. Maslin about this.
In response to the Tenants’ assertion that they were told by M D Properties not to pay
any further rent, the Receiver’s representatives stated that this advice would have been
not to pay any rent to the original Landlord.
The Receiver’s representatives stated that no rent had been paid since the appointment
of the Receiver and they indicated that, because no rent is being paid, no further repairs
would be carried out to the dwelling.
The Tenants stated that they had no difficulty paying the rent if the relevant items are
fixed.
6. Matters Agreed Between the Parties
1. The address of the dwelling is 20 Deerhaven Close, Clonee, Dublin 15.
2. A deposit of €900 was paid to the original Landlord.
3. A notice of termination was served on the Tenants on the 9th June 2015.
4. The Receiver was appointed on the 18th November 2014.
5. The Tenants have not paid any rent to the Receiver.
6. The Tenants are still residing at the dwelling.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the parties, on the balance of probabilities, the Tribunal’s findings and
reasons therefor are set out hereunder.
Finding No.1:
The Tribunal finds that the Notice of Termination served on the 9th June 2015 by the
Receiver’s Agent on the Appellant Tenants in respect of the tenancy of the dwelling at 20
Deerhaven Close, Clonee, Dublin 15 is valid.
Reason:
The Notice of Termination is procedurally correct and is in compliance with all of the
requirements of the 2004 Act, in particular sections 34 and 62 thereof and was served in
accordance with section 6 of the Act.
Finding No. 2
The Tribunal finds that the Appellant Tenants shall vacate and give up possession of the
above dwelling within 28 days of the date of issue of this Order.
Reason:
It has been found that the Notice of Termination served on the 9th June 2015 is valid, the
Appellant Tenants remain in possession of the dwelling and are therefore overholding.
The Tribunal is satisfied that the Respondent Landlord is entitled to a prompt resolution of
the dispute and, while the Tenants may have difficulty in finding other housing, where
they are overholding, and have been for some time, it is appropriate that they be allowed
28 days from the date of issue of the Order of the Board to vacate the dwelling.
Finding No. 3:
The Tribunal finds that the Appellant Tenant owes the Respondent Landlords rents
arrears in the total sum of €13,221.39 which is due and owing up to the date of this
appeal hearing.
Reason:
A tenant must pay the rent and any charges due in respect of a tenancy in accordance
with section 16(a) of the Act. On the balance of probabilities the Tribunal finds that the
Appellant Tenants have not paid any rent since they were notified of the appointment of
the Receiver on the 19th November 2014. The Tribunal therefore finds that the Appellant
Tenants have breached their statutory obligation to pay rent when it becomes due and
owe the Respondent Landlord rent arrears in the total sum of €13,221.39 up to the date
of this appeal hearing which is calculated as follows [€900 x 14 months + €29.59 x 21
days, the daily rate of €29.59 being calculated as €900 * 12 / 365 = €29.59]. The Tribunal
also finds that the obligation to pay rent under the tenancy and the Act exists
independently of any entitlement that may exist to receive rent allowance or any other
social assistance payment. It is not a matter for the Tribunal to determine who was or was
not responsible for any such payments stopping, as those matters are beyond the remit of
the Tribunal, and no such action or inaction could constitute a breach of any obligations
under the Act.
Finding No. 4:
The Tribunal makes no findings regarding alleged breaches of Landlord’s obligations.
Reason:
The Tribunal finds that any alleged breaches of Landlord’s obligations were not properly
before the Adjudicator or the Tribunal. In addition the alleged breaches were never
properly notified to the Landlord/Receiver’s representatives and many of the issues relate
to matters which occurred at a time when the Tenants were overholding i.e. after the
Notice of Termination was served, and at a time when rent was not being paid.
Finding No. 5:
The Tribunal makes no findings against the Receiver in relation to the return of the
security deposit.
Reason:
The security deposit of €900 was paid to the original Landlord and the obligation to repay
same lies with him. The original Landlord is not a party to the dispute and, accordingly, no
order for return of the deposit can be made against him by this Tribunal.
8. Determination:
Tribunal Reference TR1215-001503
In the matter of Wayne Duffy, Carmel Murphy (Tenants) and Ken Tyrrell (In his
capacity Receiver over certain assets of Akinade Adebowale) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
1. The Notice of Termination served on 9th June 2015 by the Respondent’s
Agent on the Appellant Tenants in respect of the tenancy of the dwelling at 20
Deerhaven Close, Clonee, Dublin 15 is valid.
2. The Appellant Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of this Order.
3. The Appellant Tenants shall pay the sum of €13,221.39 to the Respondent in
thirteen consecutive monthly payments of €1,000 on the 28th day of each month,
followed by one payment of €221.39 on the 28th day of the immediately succeeding
month, commencing on the 28th day of the month immediately following the date of
issue of this Order, being rent arrears of €13,221.39.
4. The enforcement of this Order for such payment of €13,221.39 will be
deferred and the total sum owing reduced by the cumulative sum paid in the monthly
instalments made by the Appellant Tenants to the Respondent on each due date until
such time as the total sum of €13,221.39 has been paid in full.
5. For the avoidance of doubt, any default in the payment of any of the monthly
instalments or further rent due shall act to cancel any further deferral and the balance
due at the date of default of any such monthly payment shall immediately become due
and owing to the Respondent.
6. The Appellant Tenants shall also pay any further rent outstanding from the
9th February 2016 [date of the hearing] to the Respondent at the rate of €900 per
month or proportionate part thereof at the rate of €29.59 per day, unless lawfully
varied, and any other charges as set out in the terms of the tenancy agreement for
each month or part thereof, until such time as they vacate the dwelling.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 09 March 2016.
Signed:
RosemaryHealy Rae Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0816-001910 / Case Ref No: 0516-26609
Appellant Tenant: Jennifer Donoghue, George Donoghue
Respondent Landlord: Lena Roe
Address of Rented Dwelling: Irey, Ballyfin, Portlaoise , Laois, R32V6X3
Tribunal: Roderick Maguire (Chairperson)
Nesta Kelly, Mervyn Hickey
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 23 September 2016 at 2:30
Attendees: Lena Roe (Respondent Landlord)
Frances McCormack (Witness for Respondent
Landlord)
In Attendance: DTI Stenographers
1. Background:
On 24 May 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 76 of the Act. The matter was referred to an Adjudication
which took place on 14 July 2016. The Adjudicator determined that:
1. The Notice of Termination served on 8th June 2016 by the Respondent Landlord
on the Applicant Tenant, in respect of the tenancy of the dwelling at Irey, Ballyfin,
Portlaois, Laois, is valid;
2. The Respondent Landlord shall pay the total sum of €2,000 to the Applicant
Tenant, within 28 days of the date of issue of the Order, being damages for breach of
landlord obligations under s. 12(1)(b)(i) and 1(1)(b)(ii) of the Residential Tenancies
Act 2004 for failure to carry out necessary repairs and maintain the dwelling in
accordance with the minimum standards, in respect of the tenancy of the dwelling at
Irey, Ballyfin, Portlaois, Laois.
3. The Applicant Tenant shall pay any further rent outstanding from 14/7/16 to the
Respondent Landlord at the rate of €360 per month, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement, for each month or
part thereof, until such time as she vacates the above dwelling.
Subsequently the following appeal was received from the Tenant on 29 July 2016. The
ground of the appeal is Other. The appeal was approved by the Board on 24 August 2016
The RTB constituted a Tenancy Tribunal and appointed Nesta Kelly, Mervyn Hickey,
Roderick Maguire as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Roderick Maguire to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 23 September 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Party present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Party that
they had received the relevant papers from the RTB in relation to the case and that they
had received the RTB document entitled “Tribunal Procedures”.
The Chairperson then explained that the Tribunal hearing, as stated in its procedures,
was not intended to be very formal, but that the Parties must follow any instructions given
by the Chair, that evidence would be given under Oath or Affirmation, would be recorded
by the stenographer present, and that based on that recording a transcript could be made
available to the Tribunal if necessary, to assist it in preparing its report on the dispute.
The Chairperson also stated that it was against the law for anyone giving evidence to
refuse to take the Oath or Affirmation, to refuse to produce any document in his control
required by the Tribunal, to refuse to answer any question put by the Tribunal, or to
knowingly provide materially false or misleading information to the Tribunal. He pointed
out that an offence may be prosecuted by the RTB through the courts and a successful
conviction could result in a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson said that the Respondent Landlord would be invited to present her case
in order to respond to the paper submissions in the form of documentation in the various
case files of the Appellant Tenants and she could be asked to respond to questions by
the Tribunal in relation to this documentation submitted by the Appellants. He also said
that at the end of the hearing, the Respondent Landlord would be given the opportunity
make a final submission should she so wish.
The Chairperson reminded the parties that any Determination Order of the RTB, based
on the report of the hearing, would decide the issue between the parties and could be
appealed to the High Court on a point of law only.
The Respondent Landlord was then sworn in.
The rent of the dwelling was € 360 per month at the end of the tenancy, and the deposit
paid at the start had been €400. The tenancy started on 1 April 2014 and ended on 6 July
2016.
5. Submissions of the Parties:
Appellant Tenants’ Submissions
All the documentation was considered by the Tribunal. In particular, it was submitted on
the papers by the Tenants that they wanted clarity in respect of their electricity bill, and
whether that was included in the award to them. They did not wish to appeal on anything
else.
It was submitted that the Landlord rented out farm buildings to others, but the Tenants
were charged for this. It was submitted that the standard of the dwelling was appalling
and that there were inadequate toilet facilities as well as damp and mould.
Respondent Landlord
The Landlord submitted that the Tenants had moved into the dwelling on 1 April 2014 and
she had served a Notice of Termination on 6 July 2016 and the Tenants had moved out
on 3 August 2016. The deposit paid was €400 and the rent was €360. There was no
claim for arrears of rent.
The Respondent Landlord submitted that the dwelling was very close to her own house.
She said that her husband was ill, and she initially thought that she could earn money by
letting the dwelling to assist with his care and to give her respite . She said that she then
revised her plans and thought that she could use the dwelling herself to stay in while
friends and acquaintances provided support and respite, which would be more costeffective.
She said that she has slept in the house for that purpose since and this was corroborated
by the witness Ms. Frances McCormack.
She stated that there had never been any problem with the dwelling until she had decided
to use the dwelling herself and had asked the tenants to leave, by serving a Notice of
Termination on 8 June 2016 with a date of termination of 3 August 2016, having served a
less formal one the previous month to which the Tenants objected.
She stated that there had been an agreement that the tenants would allow some
electricity to be used for the shed at the property, but that they were given “more than
enough money” to cover this namely an amount of €50 per year.
She stated that when she went to the property, the boiler was in working order and that a
valve had been turned off preventing it heating. If there was any mold, she was not
notified of it in advance of the Notice of Termination, and she said it was clearly because
the Tenants were not heating the property. She also stated that the tenants had not
heeded her repeatedly telling them, that the water was very hard in the area and that salt
had to be added to it, or pipes would became blocked. They had not done this. The
Landlord absolutely denied that there was an issue with the toilet facilities, and that she
was never notified of any problems until she sought to terminate the tenancy and had
served the Notice of Termination. She had a report done on 4 August 2016 and it stated
that the heating and hot water system were in good repair but that they had been turned
off.
Evidence was submitted in documentary form in the Case File of an oil boiler being fitted
in November 2014 [Page 46 of Case File 1].
6. Matters Agreed Between the Parties
Not applicable.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
hereunder.
7.1 Finding:
The Tribunal hearing is a de novo or complete re-hearing and therefore this hearing was
not on the electricity bill alone as the Tenants sought. It was a complete re-hearing of all
matters.
The Tribunal finds that the Notice of Termination dated 9 May 2016 and 8 June 2016 is
invalid.
Reasons:
It was not contended that the first Notice of Termination, of 9 May 2016 was valid, and on
examination there were many failures in the form of that Notice and the Tribunal confirms
that it was not valid.
In relation to the Notice of Termination dated 8 June 2016, The Tribunal finds that the
Landlord did intend to use the dwelling to assist with the long term care of her husband
Richard Roe and to occupy it herself as set out in the Notice of Termination.
Although this notice complies with Section 34 of the Residential Tenancies Act 2004 in
that it specifies, pursuant to paragraph 4 of the Table, that the Landlord was going to use
the dwelling for her own occupation to assist with the care of her husband, the Notice did
not contain the requirement that the ‘Landlord, by virtue of the notice, is required to offer
to the tenant a tenancy of the dwelling if the Tenant notifies the Landlord of contact
details (pursuant to Section 35(5) of the 2004 Act) and the dwelling was vacated within 6
months of the date of expiry of the notice; or the final determination of the dispute’ as
required under paragraph 4(b) of the Table to Section 34 of the 2004 Act.
However, although this failure renders the Notice of Termination of 8 June invalid, the
Landlord was entitled to terminate the tenancy for the reason of using the house to assist
with the care of her husband. The failure in relation to the contact details requirement is a
potential prospective entitlement that may accrue to the Tenants and has not yet occurred
and may not occur in the future. The failure has now been remedied, as the parties are
aware of their respective rights.
7.3Finding:
The Tribunal finds that there is no breach of the Landlord obligations under in section put
in section here the Residential Tenancies Act 2004 as alleged by the Appellant Tenants.
Reasons:
The Appellant Tenants made extensive and specific allegations in relation to the standard
and maintenance of the dwelling, in particular with regard to the electricity supply of the
dwelling, and the manner of the termination of the tenancy. Each allegation was
specifically and comprehensively denied by the Respondent Landlord and the Tribunal
finds that the Appellant Tenants have not proved that there were any breaches of
obligation on the part of the Landlord. The Tribunal finds that there is no corroboration of
the fact that the Tenants complained about any of the matters in relation to the standard
of the dwelling in advance of the Notice of Termination of the dwelling being issued, and
finds that there is no evidence to support the allegation that any shortcoming in the
standard and maintenance of the dwelling was the fault of the Landlord.
8. Determination:
Tribunal Reference TR0816-001910
In the matter of Jennifer Donoghue, George Donoghue (Tenant) and Lena Roe
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notices of Termination dated 9 May 2016 and 8 June 2016 and served by the
Respondent Landlord on the Appellant Tenants in respect of the dwelling are invalid.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
14 October 2016.
Signed:
Roderick Maguire Chairperson
For and on behalf of the Tribunal.
Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001503 / Case Ref No: 1015-21960
Appellant Tenant: Wayne Duffy, Carmel Murphy
Respondent Landlord: Ken Tyrrell (Receiver), Akinade Adebowale
Address of Rented Dwelling: 20 Deerhaven Close, Clonee , Dublin 15,
D15W5Y2
Tribunal: Rosemary Healy Rae (Chairperson)
Eoin Byrne, Peter Shanley
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 09 February 2016 at 2:30
Attendees: Wayne Duffy (Appellant Tenant)
Carmel Murphy (Appellant Tenant)
Rachel Cronin (Respondent Receiver’s
Representative)
AndrewMaslin (Respondent Receiver’s
Representative)
In Attendance: DTI Stenographer/Logger
1. Background:
On the 27th October 2015 the Landlord made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on the 17th November 2015. The Adjudicator
determined that:
(1) The Notice of Termination served on 9th June 2015 by the Receiver’s Agent
on the Respondent Tenants in respect of the tenancy of the dwelling at 20
Deerhaven Close, Clonee, Dublin 15, D15W5Y2 is valid.
(2) The Respondent Tenant and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of this Order.
(3) The Respondent Tenant shall pay the sum of €10,800 to the Applicant
Receiver in ten consecutive monthly payments of €1,000 on the 28th day of each
month, followed by one payment of €800 on the 28th day of the immediately
succeeding month, commencing on the 28th day of the month immediately following
the date of issue of this Order, being rent arrears of €10,800.
(4) The enforcement of this Order for such payment of €10,800 will be deferred
and the total sum owing reduced by the cumulative sum paid in the monthly
instalments made by the Respondent Tenant to the Applicant Landlord on each due
date until such time as the total sum of €10,800 has been paid in full.
(5) For the avoidance of doubt, any default in the payment of any of the monthly
instalments shall act to cancel any further deferral and the balance due at the date of
default of any such monthly payment shall immediately become due and owing to the
Applicant Landlord.
(6) The Respondent Tenant shall also pay any further rent outstanding from the
17th November 2015 [date of the hearing] to the Applicant at the rate of €900 per
month or proportionate part thereof at the rate of €29.59 per day, unless lawfully
varied, and any other charges as set out in the terms of the tenancy agreement for
each month or part thereof, until such time as he vacates the dwelling.
This Order was duly made by the Private Residential Tenancies Board. Subsequently a
valid appeal was received from the Tenants on the 15th December 2015 and this was
approved by the Board on the 21st December 2015.
The PRTB constituted a Tenancy Tribunal and appointed Rosemary Healy-Rae, Eoin
Byrne and Peter Shanley as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Rosemary Healy-Rae to be the chairperson of the Tribunal (“the
Chairperson”).
On the 29th December 2015 the Parties were notified of the constitution of the Tribunal
and provided with details of the date, time and venue set for the hearing.
On the 9th February 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
1. Two receipts from Knights Facility Services Ltd. dated the 31st December 2015
submitted by the Respondent Landlord’s Representatives.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellants) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent Landlord’s
representatives; that the Respondent Landlord’s representatives would then be invited to
present their case and that there would be an opportunity for cross-examination by the
Appellants.
The Chairperson explained that, following this, both parties would be given an opportunity
to make final submissions.
The Chairperson stressed that all evidence would be taken on oath or affirmation and
would be recorded by the official stenographer present. The Chairperson reminded the
Parties that knowingly providing false or misleading statements or information to the
Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months
imprisonment or both. The Chairperson asked the Parties if they had any queries about
the procedures, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [pursuant to section 123(3) of the
2004 Act].
The Parties were then sworn in.
5. Submissions of the Parties:
Evidence on behalf of the Appellant Tenants
The second named Appellant Tenant stated that they have been looking for alternative
accommodation but have not been able to source another property. They have also been
in contact with the Department of Social Protection.
She accepted that they had received correspondence from Michael Duignan Properties
on the 6th March 2015 regarding the appointment of the Receiver. She said that this was
the first time that the Tenants became aware of the appointment of the Receiver. She
also stated that Michael Duignan Properties advised them not to pay any further rent.
She stated that Andrew Maslin of Aramark Property had attended at the property to take
photos and that he had advised them that the dwelling would be put up for sale. She
showed him the work they had done at the dwelling including the provision of carpets and
a washing machine and that they had paid for everything. She said they told Mr. Maslin
that the gas system needed repair and she said this work was subsequently done.
However, the gas fire on the wall in the sitting room was inadvertently disconnected in
December 2015 and that this matter has still not been rectified.
She stated that in April 2015 AndrewMaslin had agreed to accept the rent allowance, that
he filled in the rent supplement form for them and that they left the form with him. She
said that they heard nothing further in relation to their rent supplement application. Prior
to this, rent supplement of €726 was paid to the Landlord and the balance of rent of €174
was paid by the Tenants. She said that the Landlord called to the door to collect the last
rent payment. She could not remember when they made their last payment of rent to the
Landlord but she said that it would have been shortly prior to March 2015.
She said that she received a telephone call from Rachel Cronin of Aramark Property prior
to the issue of the Notice of Termination in June 2015. She said that she told Ms. Cronin
that they had nowhere else to go and she said Ms. Cronin also agreed to accept the rent
supplement. She said she contacted Threshold and told them about the works they had
carried out at the dwelling including painting, carpets and washing machine repairs. She
said Mr. Maslin had fixed the gas and nothing else and that the gas fire on the sitting
room wall was never reconnected. She said they had no telephone number for the
Landlord and that it was very difficult to contact him.
She said that they never contacted the Department of Social Protection regarding the
outcome of the rent supplement application.
She said that they contacted a Health Inspector in Fingal County Council and they
received a report from him dated the 14th October 2015.
She accepted that a notice of termination had been served on them. She said it is
impossible to source alternative accommodation because many Landlords are refusing to
accept rent supplement Tenants.
Evidence on behalf of the Respondent Landlord
The Receiver’s representative Ms. Cronin gave evidence of the appointment of the
Receiver on the 18th November 2014. She said that the Tenants were notified of the
appointment by letter on the 19th November 2014. A second letter was issued on the
26th November 2014 and this was followed up by telephone contact with the Tenants.
She said that the Tenants were upset about the whole situation and a decision was taken
to let things “cool down” for a few weeks. She said that ultimately M D Properties were
instructed to deal with the matter on the 27th March 2015 and that they made direct
contact with the Tenants. She said that at that point the first named Appellant Tenant
agreed to co-operate with the receivership.
She said that Andrew Maslin attended at the dwelling on the 20th April 2015. She said
that the Tenants refused to give him details of the monthly rent and their PPS number so
that the tenancy could be registered with the PRTB. He said that the only detail supplied
by the Tenants was that a deposit of €900 had been paid by them to the Landlord.
Ms. Cronin said that Aramark Properties were instructed to sell the dwelling and a notice
of termination was served on the 9th June 2015. The maximum notice of 112 days was
given because Aramark Properties were unaware of when the Lease commenced. She
said that on the 11th June 2015 they were notified by the Tenants of the defects with the
gas boiler and heat exchanger.
She said that they subsequently received a letter from Fingal County Council dated the
23rd October 2015 regarding the standard and maintenance of the dwelling. She stated
that at this point in time no rent was being paid and the Tenants were overholding. She
said that they arranged for all urgent problems to be addressed by Knights Facility
Services. A defective dial on the cooker hob was replaced, a fire blanket was supplied, a
vent was replaced, smoke alarms fitted and the gas fire installation was checked. In this
regard she referred the Tribunal to the receipts from Knights Facility Services and pointed
out that all these matters were addressed after the termination date.
The Receiver’s representatives stated that it is up to the Tenant to lodge the rent
supplement application and that Mr. Maslin could not have signed the application
because he did not have the Tenants PPS numbers, photo ID, details of the rent payable
and that they had no tax receivership number at that stage.
In cross-examination the Receiver’s representatives stated that they were never notified
that the gas fire had been disconnected and that they only became aware of this at the
Adjudication hearing. Mr. Maslin stated that when he visited the dwelling in April 2015 the
Tenants were very vague about the details of the monthly rent and they only clarified that
a deposit of €900 had been paid to the Landlord. The second named Appellant Tenant
stated that the dwelling had been broken into and that they had requested that an alarm
be installed and they were constantly trying to contact Mr. Maslin about this.
In response to the Tenants’ assertion that they were told by M D Properties not to pay
any further rent, the Receiver’s representatives stated that this advice would have been
not to pay any rent to the original Landlord.
The Receiver’s representatives stated that no rent had been paid since the appointment
of the Receiver and they indicated that, because no rent is being paid, no further repairs
would be carried out to the dwelling.
The Tenants stated that they had no difficulty paying the rent if the relevant items are
fixed.
6. Matters Agreed Between the Parties
1. The address of the dwelling is 20 Deerhaven Close, Clonee, Dublin 15.
2. A deposit of €900 was paid to the original Landlord.
3. A notice of termination was served on the Tenants on the 9th June 2015.
4. The Receiver was appointed on the 18th November 2014.
5. The Tenants have not paid any rent to the Receiver.
6. The Tenants are still residing at the dwelling.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the parties, on the balance of probabilities, the Tribunal’s findings and
reasons therefor are set out hereunder.
Finding No.1:
The Tribunal finds that the Notice of Termination served on the 9th June 2015 by the
Receiver’s Agent on the Appellant Tenants in respect of the tenancy of the dwelling at 20
Deerhaven Close, Clonee, Dublin 15 is valid.
Reason:
The Notice of Termination is procedurally correct and is in compliance with all of the
requirements of the 2004 Act, in particular sections 34 and 62 thereof and was served in
accordance with section 6 of the Act.
Finding No. 2
The Tribunal finds that the Appellant Tenants shall vacate and give up possession of the
above dwelling within 28 days of the date of issue of this Order.
Reason:
It has been found that the Notice of Termination served on the 9th June 2015 is valid, the
Appellant Tenants remain in possession of the dwelling and are therefore overholding.
The Tribunal is satisfied that the Respondent Landlord is entitled to a prompt resolution of
the dispute and, while the Tenants may have difficulty in finding other housing, where
they are overholding, and have been for some time, it is appropriate that they be allowed
28 days from the date of issue of the Order of the Board to vacate the dwelling.
Finding No. 3:
The Tribunal finds that the Appellant Tenant owes the Respondent Landlords rents
arrears in the total sum of €13,221.39 which is due and owing up to the date of this
appeal hearing.
Reason:
A tenant must pay the rent and any charges due in respect of a tenancy in accordance
with section 16(a) of the Act. On the balance of probabilities the Tribunal finds that the
Appellant Tenants have not paid any rent since they were notified of the appointment of
the Receiver on the 19th November 2014. The Tribunal therefore finds that the Appellant
Tenants have breached their statutory obligation to pay rent when it becomes due and
owe the Respondent Landlord rent arrears in the total sum of €13,221.39 up to the date
of this appeal hearing which is calculated as follows [€900 x 14 months + €29.59 x 21
days, the daily rate of €29.59 being calculated as €900 * 12 / 365 = €29.59]. The Tribunal
also finds that the obligation to pay rent under the tenancy and the Act exists
independently of any entitlement that may exist to receive rent allowance or any other
social assistance payment. It is not a matter for the Tribunal to determine who was or was
not responsible for any such payments stopping, as those matters are beyond the remit of
the Tribunal, and no such action or inaction could constitute a breach of any obligations
under the Act.
Finding No. 4:
The Tribunal makes no findings regarding alleged breaches of Landlord’s obligations.
Reason:
The Tribunal finds that any alleged breaches of Landlord’s obligations were not properly
before the Adjudicator or the Tribunal. In addition the alleged breaches were never
properly notified to the Landlord/Receiver’s representatives and many of the issues relate
to matters which occurred at a time when the Tenants were overholding i.e. after the
Notice of Termination was served, and at a time when rent was not being paid.
Finding No. 5:
The Tribunal makes no findings against the Receiver in relation to the return of the
security deposit.
Reason:
The security deposit of €900 was paid to the original Landlord and the obligation to repay
same lies with him. The original Landlord is not a party to the dispute and, accordingly, no
order for return of the deposit can be made against him by this Tribunal.
8. Determination:
Tribunal Reference TR1215-001503
In the matter of Wayne Duffy, Carmel Murphy (Tenants) and Ken Tyrrell (In his
capacity Receiver over certain assets of Akinade Adebowale) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
1. The Notice of Termination served on 9th June 2015 by the Respondent’s
Agent on the Appellant Tenants in respect of the tenancy of the dwelling at 20
Deerhaven Close, Clonee, Dublin 15 is valid.
2. The Appellant Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of this Order.
3. The Appellant Tenants shall pay the sum of €13,221.39 to the Respondent in
thirteen consecutive monthly payments of €1,000 on the 28th day of each month,
followed by one payment of €221.39 on the 28th day of the immediately succeeding
month, commencing on the 28th day of the month immediately following the date of
issue of this Order, being rent arrears of €13,221.39.
4. The enforcement of this Order for such payment of €13,221.39 will be
deferred and the total sum owing reduced by the cumulative sum paid in the monthly
instalments made by the Appellant Tenants to the Respondent on each due date until
such time as the total sum of €13,221.39 has been paid in full.
5. For the avoidance of doubt, any default in the payment of any of the monthly
instalments or further rent due shall act to cancel any further deferral and the balance
due at the date of default of any such monthly payment shall immediately become due
and owing to the Respondent.
6. The Appellant Tenants shall also pay any further rent outstanding from the
9th February 2016 [date of the hearing] to the Respondent at the rate of €900 per
month or proportionate part thereof at the rate of €29.59 per day, unless lawfully
varied, and any other charges as set out in the terms of the tenancy agreement for
each month or part thereof, until such time as they vacate the dwelling.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 09 March 2016.
Signed:
RosemaryHealy Rae Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001741 / Case Ref No: 0316-24956
Appellant Landlord: Conor Fitzgerald
Respondent Tenant: Karen Browne
Address of Rented Dwelling: 158 Grandcentral, Rockbrook, Sandyford Industrial
Estate , Dublin 18, D18CA48
Tribunal: Andrew Nugent (Chairperson)
John Tiernan, Siobhan Phelan
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 12 July 2016 at 10:30
Attendees: Conor Fitzgerald (Appellant Landlord)
Emma Fitzgerald (Appellant Landlord’s witness)
Karen Browne (Respondent Tenant)
Noel Browne (Respondent Tenant’s witness)
In Attendance: Sergeant Ivan Howlin, Dundrum Garda Station
Garda Mandy Lowe, Dundrum Garda Station
DTI Wordwave International Stenographers
1. Background:
On 17 March 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 05 April 2016. The Adjudicator determined that:
1.The Respondent Landlord shall pay the total sum of €8,000.00 to the Applicant
Tenant in 8 consecutive monthly payments of €1,000.00 on the 28th day of each
month, commencing on the 28th day of the month immediately following the date of
issue of the Order, being damages of €7,000.00 for the consequences of unlawfully
terminating the Applicant Tenant’s tenancy plus a sum of €1,000.00 being damages
for breach of landlord obligations under s. 12(1)(a) of the Residential Tenancies Act
2004 by unlawfully interfering with the Applicant Tenant’s right to peaceful occupation
in respect of the tenancy of the dwelling at 158 Grande Central, Rockbrook,
Sandyford, Dublin 18.
2. The enforcement of this Order for such payment of €8,000.00 will be deferred and
the total sum owing reduced by the cumulative sum paid in the monthly instalments
made by the Respondent Landlord to the Applicant Tenant on each due date until
such time as the total sum of €8,000.00 has been paid in full.
3. For the avoidance of doubt, any default in the payment of any of the monthly
instalments shall act to cancel any further deferral and the balance due at the date of
default of any such monthly payment shall immediately become due and owing to the
Applicant Tenant.
Subsequently the following appeal was received from the Landlord on 27 April 2016. The
ground of the appeal is Unlawful termination of tenancy (Illegal eviction). The appeal was
approved by the Board on 28 April 2016
The RTB constituted a Tenancy Tribunal and appointed Andrew Nugent, John Tiernan,
Siobhan Phelan as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Andrew Nugent to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 12 July 2016 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures.”
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present his case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both Parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath and be recorded by
the official stenographer present and he reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable
by a fine of up to €4,000 or imprisonment for up to six months or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only.
The parties intending to give evidence were sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
Evidence of the Appellant Landlord:
The Appellant Landlord gave evidence that he purchased the dwelling in 2007 and used it
as his principal primary residence until 2009 when he moved out in order to find work.
The Appellant Landlord stated that he worked in the construction industry and realised
that he would have to move back to Dublin in the future in order to find work. Having
moved out in 2009, the Appellant Landlord stated that he proceeded to rent out rooms in
the dwelling separately.
In July 2015 the Appellant Landlord stated that he received a text message from one of
the incumbent tenants in the dwelling indicating that she wished to move out. The
Appellant Landlord gave evidence that the remaining tenant proposed a friend to fill the
vacancy. On this basis, the Appellant Landlord indicated that he was happy to rent the
room out to the Respondent Tenant for a period of six months. The Appellant Landlord
submitted that from the start of the tenancy the Respondent Tenant was late in paying the
security deposit and was late paying the rent on a month to month basis. He stated that
this was in breach of the terms of the Lease which stated that the rent was to be paid at
the start of each month. The Appellant Landlord stated that he met the Tenant for the first
time in November 2015 when he attended at the dwelling for an inspection.
The Appellant Landlord gave evidence that in February 2016, after the six month term of
the tenancy had expired, he gave the Tenant permission to remain in the dwelling until
she found alternative accommodation. However, he gave evidence that the Respondent
Tenant delayed looking for alternative accommodation and did not pay rent at the start of
February, 2016.
The Appellant Landlord stated that he contacted the Respondent Tenant to arrange an
inspection of the dwelling. In this regard he stated that the inspection was supposed to
take place at the start of February but because of work commitments it was rearranged to
the 13th February, 2016. On this date the Appellant Landlord submitted that when he
arrived with his wife at the dwelling he knocked on the door and rang the doorbell. As
there was no answer, he stated that he used his own key to open the door but was
prevented from doing so as there was a chain in place. The Appellant Landlord gave
evidence that the Respondent Tenant arrived at the door and let him in. The Appellant
Landlord gave evidence that he had a relaxed conversation with the Respondent Tenant
where he understood that it was agreed that the Respondent Tenant would pay the
outstanding rent covering the period from the beginning of February, 2016, on the
following Monday (the 15th February, 2016). On this basis, the Appellant Landlord gave
evidence that he was happy for the Tenant to remain in the dwelling until she secured
alternative accommodation. The Appellant Landlord also stated that during the course of
the conversation he informed the Respondent Tenant that he would be moving back into
the room which had been vacated by the other tenant. The Appellant Landlord also gave
evidence that he left a 14 day warning notice in respect of rent arrears at the dwelling for
the Respondent’s Tenant’s attention.
The Appellant Landlord stated that contrary to what he believed had been agreed, no
monies were paid to him on the 15th February, 2016. The Appellant Landlord stated that,
as the agreement had not been honoured, he terminated the tenancy on the basis of
being an owner/occupier and indicated that the Respondent Tenant was to vacate the
dwelling by the 19th February, 2016, which he stated he later extended to the 20th
February, 2016. The Appellant Landlord stated that he had communicated this to the
Respondent Tenant by email dated the 17th February, 2016, and by further text
messages.
The Appellant Landlord gave evidence that on the 21st February, 2016, he sent an email
to the Respondent Tenant stating that the locks to the dwelling had been changed
(although the Appellant Landlord admitted that the locks had not in fact been changed
when he sent the email). He further stated that he was surprised when the Gardaí arrived
at the dwelling with the Respondent Tenant at 2.30pm on the 21st February, 2016. He
gave evidence that the Respondent Tenant’s father was also with the Respondent Tenant
and that he entered the dwelling to remove the Respondent Tenant’s belongings. The
Appellant Landlord further gave evidence that when certain items belonging to the
Respondent Tenant could not be located he allowed the Respondent Tenant permission
to enter the dwelling and locate the said items.
The Appellant Landlord gave evidence that the Respondent Tenant and her father
returned, by arrangement, to the dwelling on the 24th February, 2016, when the
Respondent Tenant and her father removed the Respondent Tenant’s remaining
belongings. The Appellant Landlord stated he gave the Respondent Tenant a bank draft
in the sum of €991 to cover the return of the security deposit and to refund the
Respondent Tenant for a rent overpayment. He stated that a disagreement arose
between the parties after he asked the Respondent Tenant to sign a document which
contained certain terms.
.
3rd Party Evidence
Evidence of Sergeant Howlin:
Sergeant Howlin gave evidence that he was contacted on the 21st February, 2016, by the
Respondent Tenant in respect of a dispute involving issues in respect of the dwelling. He
indicated that as the dispute constituted a civil matter his role was to prevent a breach of
the peace and to put in a place a structure that facilitated dialogue with a view to a
possible resolution of the differences between the parties. In this regard he stated that the
matter had been dealt with after approximately 2½ hours and that, as there had been a
lack of communication between the parties, he had entered into conversation with both
sides. He stated that the Respondent Tenant’s belongings had been removed from the
dwelling by the Respondent Tenant and her father. Having been queried on this aspect of
his evidence, Sergeant Howlin confirmed that he recalled the Respondent Tenant
entering the dwelling with Garda Lowe. He also indicated that evidence that there was
laughter and that time was being wasted could have been a specific interpretation of the
situation. Furthermore, when asked, Sergeant Howlin confirmed that the apartment was
neat and tidy and that nothing was broken or needed to be cleaned.
Evidence of Garda Lowe:
Garda Lowe gave evidence that the Respondent Tenant’s keys worked in the front door
of the dwelling and that keys were furnished by the Respondent Tenant to unlock the
door to the Respondent Tenant’s bedroom. She also confirmed that the Respondent had
initially remained in the hall outside the dwelling but had entered the dwelling when a
particular item of the Respondent Tenant’s belongings could not be found.
Respondent Tenant’s Case:
Evidence of the Respondent Tenant:
The Respondent Tenant stated that she had previously referred a dispute to the PRTB in
respect of a Notice of Termination and purported rent increase which she alleged were
invalid. She stated that the adjudicator’s determination in respect of the said dispute was
still awaited at the time of the matters complained of in the within instance. Accordingly,
the Respondent Tenant argued that she was entitled to remain in the dwelling until the
adjudication was determined.
The Respondent Tenant stated that, in early February, 2016, she was concerned that if
she left the dwelling that she wouldn’t get her deposit back. Therefore, she stated that
she ceased paying rent initially at this time.
In terms of the inspection of the dwelling, the Respondent Tenant stated that it was
supposed to have taken place on the 6th February, 2016, and that the Appellant did not
cancel this date but instead arrived at the dwelling on the 13th February, 2016. On this
date the Respondent Tenant gave evidence that she did not hear a knock on the door or
the doorbell being rung. She stated that the Appellant Landlord attempted to let himself in
and that she removed the chain on the door. The Respondent Landlord gave evidence
that the Appellant Landlord informed her that he was moving into the vacant room. She
also stated the parties had a conversation in respect of the rent and she stated that
Appellant Landlord indicated to her that she wouldn’t have to leave whilst she was looking
for alternative accommodation. She also gave evidence that as it was unknown when the
adjudicator’s said decision would be issued that she suggested that she would pay rent
from week to week.
The Respondent Tenant stated that she left the dwelling following the conversation of
13th February 2016 and on her return she stated that she discovered a 14 day warning
notice in respect of rent arrears. She gave evidence that on foot of that notice she
considered the date for payment in the 14 day notice then governed obligations for
payment of arrears. Following the inspection, the Respondent Tenant gave evidence that
she felt that something wasn’t right and she stated that she contacted the PRTB. The
Respondent Tenant stated that she received a text from the Appellant Landlord on the
17th February, 2016, referring to an email he sent purportedly terminating the tenancy. In
response the Respondent Tenant stated that she replied to the Appellant Landlord by
email and text message on the 17th February, 2016. Additionally, the Respondent Tenant
stated that she sent an email to the Appellant Landlord dated the 18th February, 2016,
indicating her position and stating that the inspection that had taken place was in breach
of the Appellant Landlord’s obligations.
The Respondent Tenant also stated that following further communication from the
Appellant Landlord she transferred the outstanding rent to the Appellant Landlord on the
evening of the 17th February, 2016. She stated that she had been working hard at the
time and this had resulted in a slight delay in payment.
The Respondent Tenant gave evidence that on the 19th February, 2016, she packed a
bag and went to work and stayed in her family home that night. She stated that on the
20th February, 2016, she returned to the dwelling but didn’t enter returning again to her
family home that night. On the 21st of February, 2016, the Respondent Tenant stated that
she received an email from the Appellant Landlord stating the locks of the dwelling had
been changed and that the Respondent Tenant should arrange for the removal of her
belongings. She also stated that she did not receive messages referred to in the email
allegedly sent from the Appellant Landlord on the 18th February, 2016, at 22.42 or on the
20th February, 2016 at 12.00.
The Respondent Tenant indicated that she contacted the Gardaí because she wished to
keep matters civil. On arrival at the dwelling the Respondent Tenant stated that the locks
on the door appeared to be different. The Respondent Tenant gave evidence that she
remained in the hall outside the dwelling whilst the Gardaí and her father went in and
collected her belongings from the dwelling. The Respondent Tenant stated that this
experience was humiliating and upsetting. The Respondent Tenant also stated that she
never entered the dwelling at this point. Furthermore, the Respondent Tenant gave
evidence that agreement was made between the parties whereby the remainder of the
Respondent Tenant’s belongings could be collected on the 24th February, 2016.
On the 24th of February, 2016, the Respondent Tenant stated she returned with her
father to collect the remainder of her belongings. Having completed the removal, the
Respondent Tenant gave evidence that she was presented with a document which she
was asked to sign by the Appellant Landlord. Having been advised to examine the
document by her father, the Respondent Tenant stated that she tore up the document as
she was not comfortable signing it. She stated that the Appellant Landlord had snatched
the torn-up document from her and had only returned it with she threatened to call the
Gardaí. The Respondent Tenant gave evidence that she was refunded her security
deposit and a rent overpayment at this point. The Respondent Tenant stated that
following her departure from the dwelling she was currently residing in her family home
and had stored her belongings with a storage company at a cost of €100 per month.
Evidence of Noel Browne:
The Respondent Tenant’s father stated that he had been present with the Respondent
Tenant at the dwelling on the 21st of February, 2016. He gave evidence that the Gardaí
had spoken with the Appellant Landlord. He also gave evidence that the Respondent
Tenant had not been allowed into the dwelling and that her belongings had been handed
out to her.
The Respondent Tenant’s father also gave evidence that he returned to the dwelling on
the 24th of February, 2016, and that the remainder of the Respondent Tenant’s
belongings were removed. He also described a dispute arising between the parties in
respect of the contents of a document that the Appellant Landlord had asked the
Respondent Tenant to sign.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
(i) The tenancy commenced on the 1st August, 2015.
(ii) The rent was €725 per month.
(iii) The Respondent Tenant paid a deposit of €725.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
hereunder.
7.1 Finding: The Tribunal finds that the Respondent Tenant has secured a Part 4
Tenancy under the Section 28(1) of the Act, having been in occupation of the dwelling for
the requisite six month period from the 1st August, 2015, to the 21st February, 2016.
Reasons:
1. Section 28 of the Act provides that where a Tenant has been in occupation of a
dwelling for a continuous period of six months and a notice of termination has not been
served during that period, the tenant will be entitled to a ‘Part 4 tenancy’.
2. Section 31 of the Act provides that reference in Section 28 to a continuous period of
occupation under a tenancy includes a reference to a continuous period of occupation
under a series of two or more tenancies.
3. The Tribunal finds that the requisite six month period of continuous occupation has
been established. In reaching this finding the Tribunal has taken into account the original
fixed term tenancy of six months coupled with the additional period of time that the
Appellant Landlord allowed the Respondent Tenant to continue to reside in the dwelling.
4. The Tribunal also finds that the Respondent Tenant indicated to the Appellant Landlord
her intention to remain in the dwelling after the expiration of the original fixed term
tenancy.
7.2 Finding: The Tribunal finds that no Notice of Termination was issued to the
Respondent Tenant and her tenancy was unlawfully terminated by the Appellant Landlord
in circumstances where he indicated he had changed the locks to the dwelling on the 21st
February, 2016, and requested that the Respondent Tenant remove her belongings from
the property.
Reasons:
1. By email dated the 21st February, 2016, the Appellant Landlord indicated to the
Respondent Tenant that the locks to the dwelling had been changed and that the
Respondent Tenant should remove her belongings from the dwelling.
2. As already stated the Tribunal finds that the Respondent Tenant was entitled to a ‘Part
4 tenancy’.
3. Section 34 of the Act sets out the manner and procedure in which a ‘Part 4 tenancy’
can be terminated. The Tribunal finds that the Appellant Landlord did not adhere to the
said procedure and specifically did not serve the Respondent Tenant with a valid Notice
of Termination. Accordingly, the Tribunal finds that the actions of the Appellant Landlord
in preventing the Respondent Tenant access to the dwelling constitutes an unlawful
termination of the tenancy.
4. The Tribunal accepts that the Respondent Tenant suffered frominconvenience,
distress and upset arising from the manner in which the tenancy was unlawfully
terminated by the Appellant Landlord.
5. The Tribunal notes that no documentation was provided in respect of the storage
charges incurred by the Respondent Tenant.
6. The Tribunal is satisfied that the Respondent Tenant should be compensated in the
sum of €1,500 arising fromthe unlawful termination of the tenancy.
7.3 Finding: The Tribunal finds that the Appellant Landlord was not in breach of his
obligations under Section 12(1)(a) of the Act.
Reasons:
1. Section 12(1) of the Act provides that a Landlord is obliged to allow the Tenant of a
dwelling to enjoy peaceful and exclusive occupation of the dwelling.
2. The Tribunal is satisfied that the Respondent Tenant was on notice of the inspection
that took place at the dwelling on the 13th February, 2016.
3. Therefore the Tribunal finds that the manner in which the Appellant Landlord was
permitted to enter the dwelling on the 13th February, 2016, and to carry out the inspection
of the dwelling did not constitute a breach of the Landlord’s obligations under section
12(1) of the Act.
8. Determination:
Tribunal Reference TR0416-001741
In the matter of Conor Fitzgerald (Landlord) and Karen Browne (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
(i) The Appellant Landlord shall pay the total sum of €1,500 to the Respondent Tenant
within a period of 56 days of the date of issue of the Order, being damages of €1,500
for the consequences of unlawfully terminating the Respondent Tenant’s tenancy of
the dwelling at 158 Grande Central, Rockbrook, Sandyford Industrial Estate, Dublin 18.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
29 August 2016.
Signed:
Andrew Nugent Chairperson
For and on behalf of the Tribunal.
Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001448 / Case Ref No: 0915-21261
Appellant Tenant: Louis Finegan
Respondent Landlord: Ruth Moran
Address of Rented Dwelling: 1 Barley Cove, Wheaton Hall, Drogheda , Louth,
A92D9N4
Tribunal: Louise Moloney (Chairperson)
Eoin Byrne, Nesta Kelly
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2.
Date & time of Hearing: 19 January 2016 at 2:30
Attendees: Ruth Moran (Respondent Landlord)
Louis Finegan (Apellent Tenant)
In Attendance: Wordwave Stenography
1. Background:
On 29 September 2015 the Landlord made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 76 of the Act. The matter was referred
to an Adjudication which took place on 21 October 2015. The Adjudicator determined
that:
(1) The Notice of Termination served on the 26th of August 2015 by the Applicant
Landlord on the Respondent Tenant in respect of the tenancy of the dwelling at 1 Barley
Cove, Wheaton Hall, Drogheda, Co. Louth, A92 D9N4 is valid.
(2) The Respondent Tenant and all persons residing in the above dwelling shall vacate
and give up possession of the above dwelling within 21 days of the date of issue of the
Order.
(3) The Respondent Tenant shall pay the sum of €5,460 to the Applicant Landlord, within
21 days of the date of issue of the Order, being rent arrears in respect of the tenancy of
the above dwelling.
(4) The Respondent Tenant shall also pay any further rent outstanding from the 21st of
October 2015 , at the rate of €780 per month or proportional part thereof at the rate of
€25.64 per day and any other charges as set out in the terms of the tenancy agreement
for each month or part thereof, until such time as he/she/they vacates the above dwelling.
(5) The Applicant Landlord shall refund the entire of the security deposit of €200 to the
Respondent Tenant, on gaining vacant possession of the above dwelling, less any
amounts properly withheld in accordance with the provisions of the Act.
This Order was made by the Private Residential Tenancies Board on the 22 October
2015.
Subsequently the following appeal was received on 12 November 2015.The appeal was
approved by the Board on 20 Novemeber 2015.
The PRTB constituted a Tenancy Tribunal and appointed Louise Moloney, Nesta Kelly,
Eoin Byrne as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Louise Moloney to be the chairperson of the Tribunal (“the Chairperson”).
On 02 December 2015 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 19 January 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
-A single page extract of Lease headed “1. PARTIES AND PRINCIPAL TERMS” which
appears to be Page 3 of a Lease was submitted by the Appellant Tenant.
4. Procedure:
Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. She confirmed with the Parties that they had
received the relevant papers from the PRTB in relation to the case and that they had
received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that while the
Tribunal Hearing was a formal procedure the Tribunal would seek to be as informal as
was possible; that the person who appealed (the Appellant Tenant) would be invited to
present his case first including the evidence of any witnesses; that there would be an
opportunity for cross-examination by the Respondent Landlord; that the Respondent
Landlord would then be invited to present her case, including the evidence of any
witness, and that there would be an opportunity for cross-examination by the Appellant
Tenant. She said that members of the Tribunal might ask questions of the Parties from
time to time.
The Chairperson explained that following this, the Appellant Tenant and the Respondent
Landlord would be given an opportunity to make a final submission.
She stressed that all evidence would be taken on oath or affirmation and would be
recorded by the official stenographer present, she reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 and up to 6 months imprisonment or both. The
Chairperson drew the Parties attention to Section 7 of the Tribunal Procedures. She
asked the Parties if they had any queries about the procedure, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Parties giving evidence were then sworn in.
5. Submissions of the Parties:
Submissions:
APPELLANT TENANT`S CASE:
The Appellant Tenant said that while he was named on the Lease as the Tenant it was
his estranged wife and his son who resided in the dwelling. He said that he had sourced
the dwelling for his wife and son in 2011 as it was in a convenient location and suited
their needs. He said that personal circumstances had resulted in the rent for the dwelling
falling into arrears and that he contributed to the payment of the rent during the tenancy
as did his wife. He said that he was trying to re-locate his family members but that it was
difficult as his family members needed to be adjacent to services. He said that it was
known from the commencement of the tenancy that his wife and son were on the Lease
and he referenced the insertion of “Permitted Occupants: Louis Finegan + 2 family
members” as is endorsed on page 3 of the Lease being the extract of the Lease he
furnished to the Tribunal at Hearing.
He said he was not surprised when the notice of the 10th of August 2015 was served by
the Respondent Landlord, he suspected that it would be served. He said he was fully
aware that the rent had to be paid and the dwelling vacated, that he was doing his level
best to deal with the rent but it was taking longer to sort matters than he thought it would.
He indicated that he was not dissatisfied with the outcome of the Adjudication but he said
that he would need more time to sort out matters for his family members. He
acknowledged that he may have changed the reference on the extract of the Lease
furnished to read “Permitted Occupants: Louis Finegan + 1 family members”. When
asked by the Tribunal as to why he had done this and why he had not deleted the
reference to his name if he was not the tenant, he acknowledged that he had committed
himself to the tenancy.
In response to questions he also acknowledged that, when he met with the Respondent
Landlord to look at the dwelling prior to the commencement of the tenancy, he had said
the single room was the one he would stay in and use.
He said that the dwelling is a three bedroomed house, he said the single room is used for
storage and when he stays on occasion he confirmed that he does stay in the single room
in the dwelling.
He accepted that when the Respondent Landlord arranged for the dwelling to be viewed
in or about August 2013, after she was given notice that the Appellant Tenant was going
to move from the dwelling, the single room in the house appeared to be a bedroom. He
said that the spare room was cleared out for the viewing.
The Appellant Tenant also accepted, when questioned, that requests for aspects of
maintenance arising during the tenancy were made by him. He said that at least 80% of
that contact was made by him. He also confirmed that he liaised with electricians,
plumbers and other persons attending the dwelling to carry out maintenance as arranged
by the Respondent Landlord.
In response to further questioning the Appellant Tenant confirmed that, until rent arrears
started to accrue, the full amount of the monthly rent was paid by him into the
Respondent Landlord`s bank account each month.
In response to a question the Appellant Tenant confirmed that a portion of the full security
deposit €780 paid by him at the commencement of the tenancy was used to cover a
portion of rent payable during August 2013 and that this occurred without any prior
request at a time when the Appellant Tenant had previously said that he was leaving the
dwelling. He confirmed that when this plan changed it was agreed between the parties
that as a good will gesture the partial deposit retained in the sum of €200 would be a
sufficient deposit.
The Appellant Tenant said his circumstances were such that no support was available to
him from any quarter, although he anticipated that his circumstances would improve
depending on the outcome of another process but he could not say when such
improvement would occur. He asked that he and his family members be allowed to stay in
the dwelling.
In his final submission the Appellant Tenant say that he empathised with the Respondent
Landlord, that he wants to get the issues sorted as soon as possible and that he is
working on his financial situation as well as trying to find suitable alternative
accommodation for his family members. He said that he does not wish to do anything to
cause distress.
RESPONDENT LANDLORD`S CASE:
The Respondent Landlord said that in June 2015 when she and her husband met with the
Appellant Tenant he told them that he was trying to sort out the financial issues
presenting, to deal with the arrears of rent and also to find suitable alternative
accommodation for his family. She said that when nothing had happened by the end of
July 2015 she had to start a formal process and she referenced the 14 day notice dated
the 10th of August 2015 which was followed by the Notice of Termination dated 26th of
August 2015. She pointed out that by the time of the Adjudication Hearing on the 21st of
October 2015 there was still no resolution of the difficulties presented.
She said that the ongoing position with rent arrears continuing to accrue has caused
financial stress and strain to her own family to such an extent that her husband has had
to remain working abroad to subsidise their income in the absence of the rent payments.
She said she is under stress dealing with her own family circumstances and that this
stress is contributed to significantly by the Appellant Tenant`s overholding and by the rent
arrears accruing in respect of the tenancy in the dwelling.
6. Matters Agreed Between the Parties
a. The tenancy in the dwelling commenced on the 7 December 2011.
b. The rent for the dwelling during the tenancy was €780 per month payable monthly in
advance.
c. A security deposit of €780 was paid to the Respondent Landlord by the Appellant
Tenant at the commencement of the tenancy and the Respondent Landlord retains
portion of this security deposit in the sum of €200 as €580 was used to offset rent arising
in August 2013.
d. Rent arrears arise in respect of all payments due on and from the 7 April 2015 to
date in respect of the tenancy in the dwelling.
e. The 14 days notice dated the 10 August 2015 was served by hand on or about the 10
August 2015 by the Respondent Landlord on the Appellant Tenant.
f. The Notice of Termination dated 26 August 2015 was served by hand on or about the
26 August 2015 and is a valid Notice of Termination.
7. Findings and Reasons:
Having considered all the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal`s findings and reasons therefore are set out
hereunder.
1. FINDING: The Tribunal finds that the Appellant Tenant is the Tenant in respect
of the tenancy in the dwelling.
REASON: The Appellant Tenant accepted that he has the responsibilities of tenant in
respect of the tenancy in the dwelling. The Respondent Landlord dealt with the Appellant
Tenant from the commencement of the tenancy and on the basis of the evidence
furnished by both Parties it is clear that the Appellant Tenant was acknowledged as being
entitled to occupy the dwelling. Indeed the Tribunal notes that the extract from the Lease
as furnished by the Appellant Tenant that the Appellant Tenant is the person named as a
permitted occupant “+ 2 family members” the names of the family members are not
provided for on this extract from the Lease as submitted. As such, the Tribunal is satisfied
that the Appellant Tenant meets the definition of “Tenant” under section 5 of the Act,
being a person entitled to occupation of the dwelling under the tenancy.
The Tribunal also notes that the Appellant Tenant in his evidence appeared to accept the
Determination made in the Adjudication which took place on the 21st of October 2015
save that he wanted more time before he was obliged to leave the dwelling.
2. FINDING: The Notice of Termination dated 26th August 2015 served by the
Respondent Landlord on the Appellant Tenant in respect of the tenancy in the dwelling is
valid. The Appellant Tenant and all persons residing in the dwelling shall vacate and give
up possession of the dwelling within 56 days of the date of issue of the Order.
REASON: The Appellant Tenant accepted the validity and the service of the 14 day
Notice dated 10th of August 2015 and of the Notice of Termination dated 26th of August
2015. Indeed the Appellant Tenant in his evidence acknowledged that when he got the 14
day Notice dated 10th of August 2015 this was not a surprise to him as he accepted that
the rent arrears had to be dealt with and that the dwelling had to be vacated. It is also
clear from the evidence of the Respondent Landlord that the issues of rent arrears were
discussed with the Appellant Tenant at her meeting in June 2015 with the Appellant
Tenant which meeting the Respondent Landlord`s husband also attended.
The Tribunal is satisfied that the Notice of Termination dated 26th of August 2015 was
issued by the Respondent Landlord in compliance with the provisions of the Act and in
particular Sections 34,35, 62, and 67 thereof. The Appellant Tenant is overholding and
the Tribunal having regard to all the evidence furnished, in particular the difficulty the
Appellant Tenant has had in sourcing alternative accommodation and also the ongoing
stress suffered by the Respondent Landlord, considers that the period of 56 days from
the date of the issue of the Order should be allowed to enable the Appellant Tenant and
all persons residing in the dwelling to vacate the dwelling.
3. FINDING: The Appellant Tenant shall pay the total sum of €8,327.68 to the
Respondent Landlord, at both the rate of €500 per calendar month, and at the rate of
€25.64 where a full calendar month does not apply, on the 28th day of each month,
commencing the next month after the issue of the Order. This sum represents rent
arrears of €7,327.68 and damages of €1,000 in respect of the Appellant Tenant`s breach
of his obligations under the Act and in particular Section 16 (a) (i) thereof in respect of the
tenancy in the dwelling.
REASON: The Appellant Tenant accepted that rent arrears arise in respect of all
payments due on and from the 7 April 2015 to the date of the Hearing in respect of the
tenancy in the dwelling. The agreed monthly rent of €780 when multiplied by 12 and
divided by 365 days gives a daily rent of €25.64 in respect of the dwelling. The period
from and including the 7th of April to date is 9 months and 12 days, multiplying the
monthly rent of €780 by 9 gives a sum of €7,020 and multiplying the daily rate of €25.64
by 12 gives a sum of €307.68, adding €7,020 to €307.68 gives a total arrears of rent to
the date of the Hearing as being €7,327.68 in respect of the tenancy in the dwelling.
The Tribunal accepts the Respondent Landlord`s evidence as to the stress and hardship
suffered by her and by her family on account of the failure of the Appellant Tenant to
discharge rent in respect of the dwelling during the tenancy. In the circumstances of all
the evidence furnished the Tribunal finds that €1,000 is an appropriate level of damage to
award against the Appellant Tenant in respect of his breach of obligations under the Act,
in particular Section 16 (a) (i) and Section 115 thereof.
8. Determination:
Tribunal Reference TR1115-001448
In the matter of Louis Finegan (Tenant) and Ruth Moran (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
In the matter of Louis Finegan (Appellant Tenant) and Ruth Moran (Respondent
Tenant) the Tribunal in accordance with Section 108(1) of the Residential Tenancies
Act 2004 determine that:
1. The Notice of Termination served on the 26 August 2015 by the Respondent
Landlord on the Appellant Tenant in respect of the tenancy in the dwelling at 1 Barley
Cove, Wheaton Hall, Drogheda, County Louth is valid.
2. The Appellant Tenant and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 56 days of the date of
issue of the Order.
3. The Appellant Tenant shall pay the total sum of €8,327.68 to the Respondent
Landlord, in 16 consecutive monthly payments at the rate of €500 per calendar month,
on or before 28th day of each month followed by one payment of €327.68 in the
immediately succeeding month commencing the next month after the issue of the
Order. This sum represents rent arrears of €7,327.68 and damages of €1,000 in
respect of the Appellant Tenant`s breach of his obligations under the Act and in
particular Section 16 (a) (i) thereof in respect of the tenancy in the above dwelling.
4. The enforcement of the Order for such payment will be deferred and the total
sum owing will be reduced by the number of monthly instalments of €500 made to the
Respondent Landlord on each due date until the sum of €8,327.68 has been paid in
full.
5. For the avoidance of doubt any default in the payment of the monthly
instalments of €500 or any further rent owing shall act to cancel any further deferral
and the balance due at the date of default shall immediately become due and owing to
the Respondent Landlord.
6. The Appellant Tenant shall also pay any further rent outstanding from the 19
January 2016 at the rate of €780 per month, or proportionate part thereof at the rate of
€25.64 per day unless lawfully varied, and any other charges as set out in the terms of
the tenancy agreement for each month or part thereof, until such time as he vacates
and gives up possession of the above dwelling.
7. The Respondent Landlord shall refund the entire of the security deposit of
€200 to the Appellant Tenant, on gaining vacant possession of the above dwelling,
less any amounts properly withheld in accordance with the provisions of the Act.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 08 February 2016.
Signed:
Louise Moloney Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001679 / Case Ref No: 1115-22320
Appellant Landlord: Jospeh Harkins
Respondent Tenant: Anthony Whelan
Address of Rented Dwelling: 5 Stonebridge, North Road, Finglas , Dublin 11,
Tribunal: Roderick Maguire (Chairperson)
Nesta Kelly, Healy Hynes
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 20 May 2016 at 10:30
Attendees: Davy Freeman Mitten (Appellant Landlord’s
Representative)
In Attendance: DTI Wordwave recording technicians
1. Background:
On 11 November 2015 the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 10 March 2016. The Adjudicator determined that:
The Applicant Landlord’s application regarding the anti-social behaviour of the
Respondent Tenant, rent arrears and overholding in respect of the tenancy of the
dwelling at 5 Stonebridge, North Road, Finglas, Dublin 11 is not upheld.
Subsequently the following appeal was received from the Landlord on 16 March 2016.
The grounds of the appeal are Anti-social behaviour, Rent arrears and overholding. The
appeal was approved by the Board on 18 March 2016
The RTB constituted a Tenancy Tribunal and appointed Nesta Kelly, Healy Hynes,
Roderick Maguire as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Roderick Maguire to be the chairperson of the Tribunal (“the Chairperson”).
On 19 April 2016 the Parties were notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing.
On 20 May 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
The Tribunal waited for a period of 15 minutes to see if the Respondent tenant would
arrive, but then proceeded after the expiry of this period.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
1. 14-day warning letter from DFM to the Respondent Tenant dated 25 May 2015 in
relation to rent arrears
2. Notice of Termination of Tenancy from DFM to the Respondent Tenant dated 13
August 2015 for anti-social behaviour and referring to rent arrears also
3. Email of complaint form a neighbour dated 11 August 2015
4. Rent arrears notice from DFM dated 19 August 2015
5. Notice of Termination of Tenancy from DFM dated 3 September 2015
6. Letter from DFM dated 7 September 2015 warning the Repsondent Tenant not to be
anti-social
7. Notice of Termination of Tenancy from DFM to the Respondent Tenant dated 3
November 2015 on the basis of anti-social behaviour and rent arrears
8. Letter of complaint from another neighbour dated 5 November 2015
9. Statement of account showing that as of the date of the hearing the Respondent
Tenant was in arrears of EUR 2,146.76
10. Letter from DFM to the Respondent Tenant dated 25 April 2016 in relation to rent
arrears
4. Procedure:
The Chairperson asked the Party present to identify himself and to identify in what
capacity he was attending the Tribunal. The Chairperson confirmed with the Party that he
had received the relevant papers from the RTB in relation to the case and that he had
received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present his case and that
given the failure of the Respondent to attend, the Tribunal would engage with the
Appellant on the basis of all the information available to it.
The Chairperson explained that following this, the Party would be given an opportunity to
make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the Party that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Party that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Party was then sworn in.
5. Submissions of the Parties:
Mr. Davy stated that the tenant had started occupation of the dwelling in or around 1
September 2013, before the current owner, the Appellant Landlord, had bought the
property. There had been a change in the registration of the dwelling with the RTB and
that was why the date of commencement might be different in some documentation. He
said that the Appellant Landlord had not received the EUR 700 that the Respondent
Tenant stated he had paid as a deposit, but that was not to say that he had not paid it to
the Landlord’s predecessor.
He said that since late 2013, the Respondent Tenant had been in continuous rent arrears
and had made successive agreements with the Landlord, but that he had failed to live up
to these arrangements.
There had been a Notice of Termination, in 2014, followed by an engagement and an
agreement involving MABS that had subsequently been broken: therefore MABS had
withdrawn from assisting the Tenant. In late 2014/ early 2015, Mr. Davy had then
approached the Tenant again and he had failed to honour another agreement entered
into In 2015, the Agent, Mr. Davy, had served a Notice of Termination dated 3 September
2015 for rent arrears and anti-social behaviour, after a 14 day warning letter had been on
19 August 2015. He said that in his opinion and knowledge that the Tenant was very
noisy in the apartment and there had been complaints from other neighbours about
persistent and inappropriate noise. The Tenant was not malicious and did not intend to
upset neighbours, but the Agent stated that he continued to regularly behave in a loud
manner as to greatly interfere with neighbours’ lives as evidenced by documents
produced to the Tribunal.
6. Matters Agreed Between the Parties
None.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
here-under.
7.1 Finding:
The Tribunal finds that the Landlord served a valid Notice of Termination on the Tenant
on 3 September 2015.
Reason:
The Agent of the Landlord gave evidence and provided documentation that showed that
the Landlord had given rent arrears notices to the Tenant on 25 May 2015 and 19 August
2015 and had then served a notice on 3 September 2015 that was valid in all aspects
pursuant to the Residential Tenancies Act 2004 as amended.
7.2 Finding:
The Tribunal finds that the Respondent Tenant is in arrears in the amount of EUR
2,146.76.
Reason:
The Tribunal finds that the updated schedule of arrears provided at the hearing together
with the evidence of the Agent of the Landlord substantiated a claim that the Respondent
Tenant is in arrears in the amount of EUR 2,146.76.
7.3 Finding:
In relation to the question of Breach of Tenant obligation in respect of anti-social
behaviour the Tribunal is not satisfied that on the balance of probabilities, the evidence
presented by the Landlords agent satisfies the requirements of Section 17 (1) of the
Residential Tenancies Act 2004.
Reason: Although there was some evidence submitted purporting to be from neighbours
who were complaining about the noise caused by the Respondent Tenant, the Tribunal
does not find that the totality of the evidence submitted supports a finding that the
Respondent Tenant behaved in a way that was anti-social pursuant to the definition in
Section 17(1) of the Residential Tenancies Act 2004.
8. Determination:
Tribunal Reference TR0316-001679
In the matter of Jospeh Harkins (Landlord) and Anthony Whelan (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
1. The Notice of Termination served on 3 September 2015 by the Appellant on
the Re-spondent in respect of the dwelling at 5 Stonebridge, North Road, Finglas,
Dublin 11 is valid;
2. The Respondent Tenant and all persons residing at the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the issue of this
Order;
3. The Respondent Tenant shall continue to pay the rent at the monthly rate of
EUR 700 or proportionate part thereof at the daily rate of EUR 23, unless lawfully
varied, and any other charges set out in the terms of the tenancy agreement, for each
month or part thereof, until such time as he vacates the above dwelling.
4. The Respondent Tenant shall pay the Appellant Landlord the sum of EUR
2,846.76, being arrears of rent of EUR 2146.76 together with EUR 700 in damages for
failure to pay the rent on time as he was obliged to do. This amount shall be paid in 18
monthly instalments of EUR 150 on the 28th of each month from the 28 of the month
immediately following the date of issue of the Order, followed by one instalment of
EUR 146.76 on the 28th of the next month.
5. The enforcement of this Order for such payment of EUR 2,846.76 will be
deferred and the total sum owing reduced by the cumulative sum paid in at least the
minimum weekly instalments made by the Respondent Tenant to the Appellant
Landlord on each due date until such time as the total sum of EUR 2,846.76 has been
paid in full.
6. For the avoidance of doubt, any default in the payment of any of the weekly
instal-ments shall act to cancel any further deferral and the balance due at the date of
de-fault of any such weekly payment shall immediately become due and owing to the
Applicant Landlord.
7. The Appellant Landlord shall refund the entirety of the security deposit of
EUR 700 to the Respondent Tenant on gaining vacant possession of the above
dwelling, less any amounts properly withheld in accordance with the provisions of the
Act.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
08 June 2016.
Signed:
Roderick Maguire Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0816-001900 / Case Ref No: 0516-26763
Appellant Tenant: Clifford Hutton, Mary Butler
Respondent Landlord: Fiona McDonnell, Fiona Thornton, Ross McDonnell
acting in their capacity as the personal
representative of the Estate of Susan McDonnell
Address of Rented Dwelling: Erroldene , Coliemore Road , Dalkey , Dublin,
Tribunal: Peter Shanley (Chairperson)
Siobhan Phelan, Michelle O’ Gorman
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 22 September 2016 at 2:30
Attendees: John McDonnell (Landlord’s representative)
Lucinda Shaw (Landlord’s solicitor)
In Attendance: Wordwave T/A DTI Stenographers
1. Background:
On 30 May 2016 the Landlords made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 5 July 2016. The Adjudicator determined that:
1. The Notice of Termination served on the 11th February 2016 on behalf of the
Applicants upon the Respondent Tenants in respect of the tenancy of the dwelling at
Erroldene, 85 Coliemore Road, Dalkey, County Dublin, is valid.
2. The Notice of Termination served on the 8th April 2016 on behalf of the Applicants
upon the Respondent Tenants in respect of the tenancy of the above dwelling, is
valid.
3. The Respondent Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 14 days of the date of
issue of this Order.
4. The Notice of rent increase served on the 22nd March 2016 on behalf of the
Applicants upon the Respondent Tenants in respect of the tenancy of the above
dwelling, is valid.
5. The Respondent Tenants shall pay the total sum of €10,005.90 to the Applicants
within 14 days of the date of issue of the Order, being rent arrears of €9.005.90
which sum is inclusive of the Market Rent of €1,800 per month which came into effect
on 1st July 2016, in addition to damages of €1,000 for failure to pay rent in respect of
the tenancy of the above dwelling.
6. The Respondent Tenants shall also pay any further rent outstanding from 5th July
2016 to the Applicants at the rate of €1,800 per month or proportionate part thereof at
the rate of €51.18 per day unless lawfully varied, and any other charges as set out in
the terms of the tenancy agreement for each month or part thereof, until such time as
they vacate the above dwelling.
7. The Applicants shall refund the entire of the security deposit of €1,500 to the
Respondent Tenants, upon the Respondent Tenants vacating and giving up vacant
possession of the above dwelling, less any amounts properly withheld in accordance
with the provisions of the Act.
Subsequently an appeal was received from the Tenants on 3 August 2016. The grounds
of the appeal were: (i) Invalid Notice of termination, (ii) Rent more than market rate, (iii)
Breach of landlord obligations, (iv) Other. The appeal was approved by the Board on 4
August 2016.
The RTB constituted a Tenancy Tribunal and appointed Peter Shanley, Siobhan Phelan,
Michelle O’ Gorman as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Peter Shanley to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 22 September 2016 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
1. Spreadsheet recording time spent by the Landlords’ solicitors preparing for the case.
2. Spreadsheet recording time spent by the Landlords’ representative preparing for the
case.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson confirmed that the parties in attendance were for the Tribunal
Respondents only. There were no representative from the Appellants in the matter. The
Tribunal confirmed that the Appellants had contacted the RTB to indicate that they
intended to withdraw their appeal.
As the Appellant Tenants were not in attendance, and had expressly withdrawn their
appeal, the Tribunal deemed that the matter could not be opened and deemed the appeal
abandoned.
The Respondent Landlords made an application to recover the costs incurred in
preparation of the case.
5. Submissions of the Parties:
John McDonnell appeared as a representative of the Landlords, having been expressly
authorised by the Landlords to act as their agent in respect of these proceedings.
Mr. McDonnell explained that some very serious allegations were made by the Tenants in
the course of this dispute and, in addition to the distress that this caused him, dealing with
these allegations required him to spend a considerable amount of time engaging in
voluminous correspondence and preparing for the case. Mr. McDonnell submitted a
breakdown of the time spent in preparation for this case noting that 7 hours were spent
preparing for the adjudication hearing and 3 hours were spent preparing for the appeal.
He submitted that as a tax consultant, his hourly rate is €250 plus VAT and that was
therefore the cost he incurred in having to devote this time to the preparation of the case.
He submitted that he should recover this cost. No evidence was given that this was a cost
that was actually incurred by the Respondent Landlords or that it was intended to charge
the Estate of Susan McDonnell for this time.
Lucinda Shaw, Solicitor for the Landlords’ representative submitted that section 82(5) and
82(6) of the Act gave the Tribunal jurisdiction to direct that the party withdrawing the
appeal may pay to the other party any costs incurred by that other party relating to the
preparation of the case. In this regard, she submitted that the cost incurred by Mr.
McDonnell in spending time preparing for the case should be recovered from the
Tenants.
Ms. Shaw submitted that the Tribunal also had jurisdiction under section 5(3) and 5(4) of
the Act to determine, if the exceptional circumstances of the matter so warrant, that any
element of costs the subject of a direction made by the Tribunal may include legal costs
or expenses. Ms. Shaw submitted that if the Tribunal was minded to make a direction
under section 82(5) that the Tenants pay to the Respondents any costs incurred by the
Respondents relating to the preparation of the case, this amounts to a “direction” within
the meaning of section 5(4) such as would allow the Tribunal, given the exceptional
circumstances of the case, to make an award of costs, to include legal costs, in favour of
the Respondents.
Regarding the “exceptional circumstances” of the case, Ms. Shaw referred to the
voluminous correspondence exchanged between the parties and furthermore the nature
of the allegations made by the Tenants. She submitted that although these allegations
were without foundation, they had to be investigated and the legislation cited by the
Tenants in their correspondence had to be researched.
6. Matters Agreed Between the Parties
N/A
7. Findings and Reasons:
7.1 The Respondents are not entitled to recover the cost of their representative’s time
spent preparing for the case.
Reasons:
1. Section 82(5) gives the Tribunal jurisdiction to direct that the party withdrawing the
appeal shall pay to the other party any costs incurred by that other party relating to the
preparation of the case. It provides as follows:
(5) On such notice being given to it or him or her, the Board, the mediator, the adjudicator
or the Tribunal shall ascertain whether the other party to the dispute concerned objects to
the withdrawal and, if he or she does so, the Board, mediator, adjudicator or Tribunal may
direct that the party withdrawing the matter shall pay to the other party such costs and
expenses incurred by that other party as it or he or she determines.
2. Regarding the meaning of a “party” in Part 6 of the Act, section 75(4) of the Act
provides as follows:
(4) References in this Part to a party, without qualification, are references to—
(a) a party to the dispute or disagreement concerned,
(b) in the case of proceedings referred to in section 23 to recover rent or other charges
where the landlord or the person alleged to owe the rent or other charges is deceased,
the personal representative of the landlord or that other person,
(c) the personal representative of the landlord or the tenant in any other case where, if the
matter were a cause of action (within the meaning of the Civil Liability Act 1961 ), it would
have survived for the benefit of, or against, the estate of the landlord or the tenant,
(d) in the case of a complaint mentioned in section 76 (4), the licensee and the landlord,
and
(e) in the case of a complaint mentioned in section 77 —
(i) the complainant, and
(ii) the landlord of the dwelling concerned.
3. References to a “party” do not, therefore, include a party’s representative. The
legislation does not allow for the recovery of costs incurred by a party’s representative.
4. No evidence was adduced to the effect that the “party” to the dispute, i.e. the
Landlords, had incurred any cost in relation to the preparation of the case, or that Mr.
McDonnell intended to charge them for this time.
5. The Tribunal accepts that a lot of work was involved in responding to the issues raised
in this case and the Tribunal understands also that Mr. McDonnell’s time is valuable and
that he was prevented from doing other work because of the time he spent in dealing with
the dispute. However, the Tribunal is satisfied that it does not have jurisdiction to direct
that the party withdrawing the appeal pay to the other party any costs incurred by that
other party’s representative relating to the preparation of the case absent evidence that
the said costs and expenses had been incurred by that other party.
7.2 The Respondents are not entitled to recover the legal costs incurred in dealing with
the dispute.
Reasons:
1. Section 82 of the Act provides as follows:
82.—(1) A party who has referred under this Part any matter to the Board may, at any
stage, withdraw the matter.
(2) Subject to subsection (3), a party shall indicate his or her wish to withdraw such a
matter by serving a notice in writing on the Board to that effect.
(3) If the matter is being dealt with by a mediator, an adjudicator or the Tribunal, it suffices
for the party to indicate, orally to him or her or it, that the party is withdrawing the matter.
(4) Without prejudice to subsection (5), on oral or written notice, as appropriate, being
given in respect of the withdrawal, the Board, the mediator, the adjudicator or the Tribunal
shall consider the matter concerned withdrawn and, accordingly, shall not deal with it any
further.
(5) On such notice being given to it or him or her, the Board, the mediator, the adjudicator
or the Tribunal shall ascertain whether the other party to the dispute concerned objects to
the withdrawal and, if he or she does so, the Board, mediator, adjudicator or Tribunal may
direct that the party withdrawing the matter shall pay to the other party such costs and
expenses incurred by that other party as it or he or she determines.
(6) Any costs awarded under subsection (5) shall not exceed €1,000.
(7) In subsection (5), costs incurred by the other party includes costs or expenses—
(a) relating to travelling and attendance at any place required for the adjudication or
determination of the matter concerned, and
(b) relating to the preparation of his or her case,
and, for the avoidance of doubt, such preparation costs do not include legal costs referred
to in section 5(3)(a).
2. The costs referred to in section 5(3)(a) are “legal costs or expenses”.
3. The Tribunal is satisfied that where the Act expressly provides for the recovery of costs
in circumstances where a party withdraws an appeal (section 82) and where that section
expressly excludes the recovery of legal costs or expenses (section 82(7)), the Tribunal
does not have jurisdiction to award the legal costs of the proceedings in favour of the
Respondent Landlords in this case.
4. The Tribunal does not consider the provisions of section 5(4) to confer on it jurisdiction
to award legal costs in circumstances where the Appellants withdrew their appeal.
5. Section 5(4) provides as follows:
(4) Despite subsection (3), the Board or, with the consent of the Board, a mediator, an
adjudicator or the Tribunal may if, in its or his or her opinion the exceptional
circumstances of the matter so warrant, determine that any element of costs the subject
of a determination or direction made or given by it or him or her shall include costs
referred to in paragraph (a) or (b) of that subsection.
6. Even if section 5(4) could confer jurisdiction to award legal costs in circumstances
where the Appellants withdrew their appeal, the circumstances required to trigger section
5(4) are missing: having decided against the Respondents in relation to the cost of their
representative’s time spent preparing for the case, Tribunal has not made any
determination or direction in this case and accordingly, there is no element of costs “the
subject of a determination or direction” which the Tribunal could award to the
Respondents.
8. Determination:
Tribunal Reference TR0816-001900
In the matter of Clifford Hutton, Mary Butler (Tenants) and Fiona McDonnell, Fiona
Thornton, Ross McDonnell acting in their capacity as the personal representative
of the Estate of Susan McDonnell (Landlords) the Tribunal in accordance with
section 108(1) of the Residential Tenancies Act 2004, determines that:
The Appellant Tenants’ appeal in respect of the tenancy of the dwelling at Erroldene,
Coliemore Road, Dalkey, County Dublin, is withdrawn.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
26 September 2016.
Signed:
Peter Shanley Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001633 / Case Ref No: 1215-23164
Appellant Landlord: Irish Residential Properties REIT Plc
Respondent Tenant: Karolina Madej
Address of Rented Dwelling: 210 Charlestown Place, St. Margaret’s Road,
Finglas , Dublin 11,
Tribunal: Vincent P. Martin (Chairperson)
Ciara Doyle, Eoin Byrne
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 21 April 2016 at 2:30
Attendees: Alan Kavanagh (Appellant Landlord’s
Representative)
Janna Petersen (Appellant Landlord’s
Representative)
Karolina Madej (Respondent Tenant)
In Attendance: DTI Stenographers
1. Background:
On 21 December 2015 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 16 February 2016. The Adjudicator determined that:
The rent review notice served on 26th November 2015 by the Landlord on the Tenant
in respect of the tenancy of the dwelling at 210 Charlestown Place, St. Margaret’s
Road, Finglas, Dublin 11, is invalid.
Subsequently a request for an appeal by the Appellant Landlord was received on 26
February 2016 which was approved by the Board on 29 February 2016. The RTB
constituted a Tenancy Tribunal and appointed Vincent P. Martin, Ciara Doyle, Eoin Byrne
as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Vincent
P. Martin to be the chairperson of the Tribunal (“the Chairperson”). On 29 March 2016 the
Parties were notified of the constitution of the Tribunal and provided with details of the
date, time and venue set for the hearing. On 21 April 2016 the Tribunal convened a
hearing at Tribunal Room, RTB, 2nd Floor, O’Connell Bridge House, D’Olier Street,
Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
• Photographs of apartments were submitted by the Respondent Tenant.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document titled “Tribunal Procedures”. The Chairperson
explained the procedure which would be followed; that the Tribunal was a formal
procedure but that it would be held in as informal a manner as was possible; that the
Appellant Landlord would be invited to present their case first; that there would be an
opportunity for cross-examination by the Respondent Tenant; that the Respondent
Tenant would then be invited to present her case, and that there would be an opportunity
for cross-examination by the Appellant Landlord’s representatives. The Chairperson
explained that following this, both Parties would be given an opportunity to make a final
submission.
The Chairperson said that all evidence would be given on oath or affirmation and be
recorded by the official stenographer present and she reminded the Parties that
knowingly providing false or misleading statements or information to the Tribunal was an
offence punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing, the Board of
the RTB would make a Determination Order which would be issued to the parties and
could be appealed to the High Court on a point of law only. The parties intending to give
evidence were sworn in/affirmed.
5. Submissions of the Parties:
The Appellant Landlord’s Submissions:
The Appellant Landlord carried out a rent review and notified the Respondent Tenant by
letter dated 26 November 2015 that the rent would be €1,200.00 per month from
09/01/16. The Appellant Landlord’s representative (Janna Peterson) stated that she was
appealing the determination of the Adjudicator that the notice of rent increased served by
the Landlord on the Tenants on the 26th November 2015 in respect of the tenancy of the
dwelling at 210 Charlestown Place, St. Margaret’s Road, Finglas, Dublin 11 is invalid.
Janna Peterson submitted that the Appellant Landlord’s position was that the Adjudicator
had erred in law in his finding that the rent in respect of the dwelling was reviewed on
28/11/14 and was subsequently reviewed on 26/11/15 holding, inter alia that,
‘A review of the rent under the tenancy could not occur more frequently than once in each
period of 12 months pursuant to section 20(1)(a) of the 2004 Act. The rent review notice
dated 26/11/15 must therefore be deemed to be an invalid’
She stated that in 2014 the dwelling was acquired as part of a portfolio of around 700 plus
apartments. The legal argument presented by Janna Peterson and which was supported
by a written submission to the Tribunal can summarised as follows:
1. Rent and Rent Reviews – Residential Tenancies Act 2004
Section 20 of the Residential Tenancies Act 2004 (“the 2004 Act”) states a review of rent
under the tenancy of a dwelling may not occur:
(a) More frequently than once in each period of 12 months, nor
(b) In the period of 12 months beginning on the commencement of the tenancy
Section 22 of the Residential Tenancies Act 2004 states,
(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy
of a dwelling and which is otherwise lawful under this Part shall not have effect unless
and until the conditions specified in subsection (2) is satisfied.
(2) That condition is that, at least 28 days before the date from which the new rent is to
have effect, a notice in writing is served by the Landlord on the Tenant stating the amount
of new rent and a date from which it is to have effect.
Section 20 and Section 22 are independent of each other and Section 20 could exist
without Section 22. Janna Peterson submitted that a Landlord should not be able to
increase or decrease rent without informing the Tenant of the change so Section 22 was
incorporated into the Act.
She further submitted that if the notice of rent review was so inextricably linked to the
frequency of rent review, it would have been written as a subsection of Section 20 and
not as a Section in itself. The frequency with which rent reviews may occur and the right
of the Tenants to be notified are not tied together and therefore a rent review does not
occur on the date the Tenants are notified of the change in rent.
She submitted that as rent can be decreased with the same frequency as it can be
increased, the wording used in the Act had to encompass the change in either direction.
However she submitted that if one interprets the Act using exact terms the ambiguity
surrounding rent reviews becomes clear. She stated that an increase or decrease of rent
(as the case may be) under the tenancy of the dwelling may not occur more frequently
than once in each period of 12 months. She submitted that the condition that the Tenants
are to be notified in writing 28 days before the new rent is to have effect has no bearing
on the frequency of the increase/decrease in rent.
2. Residential Tenancies (Amendment) Act 2015
She submitted the Residential Tenancies (Amendment) Act 2015 came into operation on
the 4th December 2015 and any of the changes affected by its introduction are not
applicable to notices of rent increases served prior to this date as is the case with the rent
increase in this dispute herein.
She highlighted the exact changes the 2015 Act made to Part 3 of the 2004 Act. In
particular she stated it introduced very limited changes including changing the frequency
of rent reviews from 12 months to 24 months, the notice period from 28 to 90 days and
identifying the specifics which the notice must contain. She submitted no change was
made to the term “rent review” and no change was made to the date a rent review occurs
and no change was made to clarify how it is to be interpreted.
3. RTB Legal Advice
She submitted that the RTB had sought legal advice regarding the date a rent review
occurs which they received in January 2016 and submitted that in her opinion this legal
opinion was now being used to invalidate their notice which she submitted was properly
served prior to the introduction and operation of the 2015 Act and prior to the legal advice
being sought.
She submitted position that if the new 2015 Act were not introduced, the legal advice
would not have been sought and the RTB would have continued applying and interpreting
the Act as it had consistently done in the past. She submitted that it appeared to her that
the said written advice was being applied retrospectively now, to invalidate their said
notice.
She said the legal advice stated that the fact Section 22 envisages a rent review notice
being served pursuant to a review of the rent under a tenancy would suggest that the rent
review takes place before the service of the notice. The reasoning behind the advice
states that the rent review takes place before the service of the notice. Therefore if the
review takes place before the service of the notice, the date the notice is served is not the
review date. It is irrelevant if the date the notice is served is less than a 12-month period
from the last.
She further goes on to say the advice provided states the legislation would appear to
suggest that the rent review does not take place when the new rent takes effect but rather
when the rent review notice is served. She stated this to be incorrect based on the
above.
She said nowhere in the 2004 Act or indeed the 2015 Act 2015 does it say the rent review
takes place prior to the service of the notice and that it is a far stretch to say the rent
review takes place prior to the service of the notice and then to say the date the notice is
served is to be used as the date in question.
4. No Distinction between Notice Date and Effective Date
She said Section 25(3) of the 2015 Act makes a distinction between a review that is being
carried out and one that has been carried out. If you proceed on the basis of the RTB
advice, and the rent review takes place when the notice is served then the day it is served
a rent review has been carried out. A notice was either served before 4 December 2015
or it was not. If it was served before 4 December 2015, then a rent review has been
carried out.
She submitted, if that were the case, there would be no need for the legislation to include
the wording in sub paragraph (i) “where a review of rent is being carried out”, which she
said refers to a situation where a notice of increase has been served but the date it is to
take effect occurs after 4 December 2015.
She asked how could a review of rent be in the process of being carried out if no notice
was served. By this logic she said a Landlord could serve a notice of increase today and
say they were in the process of reviewing the rent prior to the 4th December 2015. In her
opinion under no circumstances would the RTB accept a notice of increase served today
submitting that clearly sub paragraph 1 where a review of rent is being carried out refers
to a situation where a notice of increase has been served but the date it is to take effect
occurs after the 4th December 2015 which is the case with their notice.
The fact that the rent increase took effect on the 9th January 2016, 12 months from their
last increase date abides by the required 12-month period between rent increases under
the 2004 Act which is the legislation applicable at the time the notice was served.
5. Rent Review Disputes Procedure
She further referred to the document the RTB sends with their notification of disputes
under rent review wherein it is suggested that a Landlord or Tenant submits the
prescribed notice of increase. She stated that it is not suggested that any or all previous
notices of rent increase be submitted. If the date of service of notice is the rent review
date then she submitted it would be logical to recommend that all prior notices of increase
be submitted. However this is not the case submitting that only the notice in question is
under the spotlight.
6. Section 122 Residential Tenancies Act 2004 and Previous Cases
She submitted Section 122 of the 2004 Act enables the RTB to ensure consistency
between determinations and highlighted 7 determination orders and corresponding case
documents to demonstrate that there has been a total change in the RTB’s application of
Part 3 of the Residential Tenancies Act 2004 which she submitted appears to be based
on legal advice sought in response to the enactment the Residential Tenancies
Amendment Act 2015 yet she submitted that no change to the dispute in question was
effected by the Amendment Act.
She submitted that she could not find one single precedent where a notice of rent review
was deemed invalid for being served either within the first 12 months of a tenancy or
within 12 months from the last notice of rent review. In conclusion Janna Peterson
submitted that these decisions demonstrated the RTB had heretofore consistently been of
the opinion that the date in question is actually the date the last increase took effect and
not the date the last notice was served submitting that it is from the date the rental
payment becomes effective which matters.
7. RTB Retroactively applying Legal Advice
She claimed they had always operated with the understanding that rent can be increased
12 months from the tenancy commencement date or 12 months from the last increase
date and submitted that the RTB has always operated with this understanding and
interpretation. However she was of the opinion that since the RTB received their legal
advice in January 2016 there has been systematic change in the RTB’s application and
Part 3 of the RTA 2004 where no change was introduced by the Amendment Act and that
has had a significant impact on Landlords. She said the change in the interpretation and
application of the 2004 Act is inconsistent with all previous determinations on the matter.
8. Impact on Tenants
She submitted the Tenants had not suffered in any way and was in fact given an
additional 2 days’ notice that the rent was going to increase, that the Landlord had always
provided more than 28 days’ notice that the Tenants’ rent was increasing 12 months from
their last increase.
9. Market Rent
Janna Peterson and her colleague Alan Kavanagh adduced in oral testimony and
documentary evidence rental details of a number comparable apartments in the same
development in support of the rent increase.
Submission of the Respondent Tenant:
The Tenant submitted that she was oppposed to the rent increase. She submitted that the
rent was €850.00 per month when she commenced her tenancy on 09/11/13. She stated
that she received a rent review notice on 28/11/14 to notify her that the rent would be
increasing from €850.00 per month to €979.00 per month from 09/01/15 and it was
eventually agreed that the monthly rent would be €925.00 per month payable from
09/01/15.
The Respondent Tenant agreed that the Appellant Landlord notified her by letter dated
26/11/15 that the rent would be €1,200.00 per month from 09/01/16. The Tenant
submitted she has been paying increased monthy rent at a rate of €1,200.00 per month
since 09/01/16 and in respect of same, the representative on behalf of the Appellant
Landlord stated that in circumstances where their said rent review notice were to be
deemed to be invalid by the Tribunal, the Respondent Tenant would have paid excess
rent.
The Chairperson thanked both parties for attending and advised them that following the
hearing the Tribunal will prepare a report and make its Determination in relation the
dispute and will notify the RTB of that Determination.
6. Matters Agreed Between the Parties
• The tenancy commenced on 09.11.2013 when the Parties entered into 12 month
fixed term tenancy agreement.
• The Respondent Tenant paid a security deposit in the sum of €850.00
7. Findings and Reasons:
Findings and Reasons: Having considered all of the documentation before it and having
considered the evidence presented to it by both Parties, the Tribunal’s findings, based on
the balance of probabilities and the reasons therefor, are set out hereunder:
Finding 1: The notice of rent review served by the Appellant Landlord on the Respondent
Tenants on the 26th November 2016 is invalid as it was based on an invalid review.
Reason: Section 20(1) of the Act of 2004, as it stood at the date of service of the notice of
rent review in this case, specified: –
“Subject to subsection (3), a review of the rent under the tenancy of a dwelling may not
occur—
(a) more frequently than once in each period of 12 months, nor
(b) in the period of 12 months beginning on the commencement of the tenancy.”
For the purposes of the present case, it is not in dispute that the qualification in 20(3)(i)
does not apply: there has been no substantial change in the nature of the accommodation
provided under the tenancy.
As such, the Tribunal holds the dispute turns on the issue relating to the frequency with
which a review of the rent may occur. Also for the avoidance of any doubt, the Tribunal is
the opinion while section 20 has since been amended, it is clear that the said amending
legislation only came took effect after the date of service of the notice in this given case.
Accordingly, it is the earlier wording of Section 20 which applies to the present dispute.
Section 22 of the Act of 2004, at that material time, prior to the recent amendment,
specified: –
“(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy
of a dwelling and which is otherwise lawful under this Part shall not have effect unless
and until the condition specified in subsection (2) is satisfied.
(2) That condition is that, at least 28 days before the date from which the new rent is to
have effect, a notice in writing is served by the landlord on the tenant stating the amount
of the new rent and the date from which it is to have effect.
(3) Where that condition is satisfied, a dispute in relation to a rent falling within subsection
(1) must be referred to the Board under Part 6 before—
(a) the date stated in the notice under subsection (2) as the date from which that rent is to
have effect, or
(b) the expiry of 28 days from the receipt by the tenant of that notice,
whichever is the later.”
It is clear in the present case that the dispute was referred to the Board inside the
relevant time. As such, there is no procedural bar to the Tribunal considering the validity
of the notice.
Unfortunately the term “review of the rent” is not defined under the Act of 2004 nor has it
been defined by the recent amendment Act and nor can the Tribunal point to this specific
matter ever been interpreted and/or clarified in a judgement delivered by Courts. The
Tribunal is of the opinion that the central issue in the case herein is the definition of this
term and what is explicitly prohibited by section 20. The primary issue is whether the term
“review of the rent”, and thus the action prohibited from occurring more frequently than
once in each period of twelve months, envisages either: 1) a separate event that occurs
either before or at the same time as the service of the notice of rent review; or 2) occurs
only on the date on which the change in the rent takes effect.
While there have been a number of previous decisions submitted to the Tribunal by the
Appellant Landlord ostensibly in respect of this point, from a review of the decisions and
reports provided, in none of the cases does it appear that this distinction, or its
importance, was expressly argued and/or in any way canvassed. The distinction in the
present case is clearly a discrete legal distinction and not one which the Tribunal would
necessarily expect a party without professional legal representation to be aware of, and
certainly not one that would appear to be immediately apparent to an person untrained in
law reading the Act of 2004, notwithstanding the fact the dispute resolution procedures
under the Act of 2004 were designed to provide for informal procedures and minimise the
need for legal advice and representation. It appears to the Tribunal that the reports and/or
authorities cited by the Appellant Landlord in support of advancing its proposition are of
little legal importance in respect of the distinction prior to the commencement of the
amendments in the Act of 2015, in particular the increase in respect of the frequency of
reviews from 12 to 24 months (albeit some of the previous hearings cited did take place
after the commencement of the amendments). Previously, if a review or notice had been
deemed invalid, there was little to stop a landlord from carrying out a new review almost
immediately and serving a new notice, providing at least 12 months had been provided
since the previous valid review, which would often have been the case. Obviously, in
respect of reviews carried out just prior to the commencement of the relevant sections of
the Act of 2015, the distinction has now become important, given that the effect of a
finding of invalidity in respect of such a review could well mean that a landlord is
prohibited from reviewing the rent again until two years from the previous valid review, as
opposed to one year in respect of reviews carried out before the amendment.
Furthermore there are many examples of cases where a law has been applied and
interpreted in a particular way for an extended period of time, only for it to transpire
subsequently that the interpretation of the section was incorrect, when the matter is
canvassed before a Tribunal for the first time and/or is fully considered. In particular,
given that the discrete issue which is the main subject matter of this dispute does not
appear to have been fully argued before any previous hearing, the Tribunal is satisfied
that it is entitled and that it is appropriate to consider the issue fully, even if it may result in
an outcome different from previous cases. Given the independence in function of the
Tribunal, it is for the Tribunal to consider the matter.
To continue to apply an interpretation that has previously been applied, on that basis
alone, could obviously result in an error being compounded rather than corrected. It is
also clear that a number of adjudicators in recent cases have interpreted section 20 in
prohibiting the review occurring, rather than taking effect, more frequently than once
every twelve months (now twenty-four months). As such, it is not quite correct to say that
the Board has always been of the opinion that the relevant date is the date the increase
takes effect.
Section 122 of the Act expressly applies to the Board and does not apply to the Tribunal;
indeed, it is for the Board to amend orders already made by the Tribunal, for clarification
purposes. While it is the original wording of the Act of 2004, rather than the amended
wording, that the Tribunal is being called on to consider, and while advice has recently
been sought by the Board in respect of the interpretation of section 20, the Tribunal’s role
is to see that the Act is applied correctly. As such, the Tribunal is not applying advice
retrospectively, but is instead ensuring that the Act of 2004, as it stood up until its recent
amendment, is correctly applied to the facts of the current case. While it may very well be
the case that the advice in question would not have been sought had it not been for the
new Act and the amendments provided for under it, that is again not surprising, given the
impact of the changes and the fact the distinction in the present case was relatively
unimportant until the passage of the Act of the 2015. Certainly, the advice does not in any
way affect the text of section 20 and its application to the instant case; instead, it helps to
clarify and interpret the meaning of those words. In any event and as stated the Tribunal
is independent in the performance of its functions and this or any other legal opinion or
advices cannot ever interfere with and/or influence the independent function of the
Tribunal. Indeed, section 103(6) of the Act expressly provides for the independence in the
performance of the functions of the Tribunal:
‘The Tribunal shall be independent in the performance of it functions’.
Any potential question mark over the consideration of section 122 by the Tribunal, despite
its apparently clear application to the Board alone, is contradicted by section 103(6) of the
Act. Similarly, any question mark over whether or not the Tribunal is bound by advice
sought by the Board and the retrospective application of that advice is also covered by
the said Section 103(6). The decision reached by the Tribunal in the present case is a
decision that has been reached independently, without external interference, and in
accordance with section 103(6) of the Act. By way of comment, the Tribunal notes that
the written advices and/or opinion referred to and/or relied upon in this case by the
Appellant Landlord would appear to be been done without any evidence given that either
the author of that opinion and/or the commissioning body has consented to such usage
and/or reference.
While the Board’s website may suggest that certain information be submitted by parties in
preparation of disputes in respect of rent review, and while that may not include former
notices of rent review, the suggestion is clearly provided as guidance only and cannot
cover every possible source of dispute. Also, in any event, given that the majority of
previous disputes, at least based on those submitted by the Appellant Landlord, turn on
the issue surrounding the amount of the rent increase sought, rather than the technical
validity of the notice, and the prohibition on reviewing more than every twelve months,
this is again not surprising. Certainly, these suggestions do not in any way affect the text
of section 20 and its application to the instant case; instead, they provide general
guidance only to parties who find themselves before the RTB.
Giving words their plain meaning, section 20 of the Act of 2004 prohibits the occurrence
of a rent review more frequently than once in every period of twelve months. It does not
prohibit the taking effect of a rent review more frequently than once in every period of
twelve months, even though this is almost always the effective result of the prohibition. If
what was prohibited was a change in the amount of rent payable occurring more than
once every twelve months, one would have expected section 20 to read “a review of the
rent under the tenancy of a dwelling may not take effect”, or similar wording, rather than
what it does read, namely “a review of the rent under the tenancy of a dwelling may not
occur”. It would do violence to the plain meaning of the words of section 20 were the
Tribunal to interpret the word “occur” as meaning “take effect”, notwithstanding the fact
that previous Tribunals have operated with this understanding.
Indeed, reading section 22 of the Act of 2004, it is clear that the legislature intended that
the date of taking effect was a different date. Section 22 expressly refers to “the date from
which the new rent is to have effect”, under subsection (2), in respect of the requirement
to notify the tenants in writing of the amount of the new rent. Were the intention of the
legislature that section 20 prohibited the taking effect of a new rent, one would have
expected wording similar to that appearing in section 22(2) to have appeared in section
20, but that is clearly not the wording of section 20. As such, on this basis alone, section
20, as it then stood, appears to prohibit the act of review, rather than its taking effect,
occurring more frequently than once every twelve months.
Taking this further, it is clear that section 22(1) of the Act of 2004 presupposes that the
review of the rent is something which occurs before the service of the notice under
section 22(2). In particular, given that it states that “the setting of a rent … pursuant to a
review of the rent … which is otherwise lawful under this Part shall not have effect unless
and until the condition specified in subsection (2) is satisfied”, it is clear that it envisages
that the review is a standalone event. Were the review to be construed as only occurring
on the date on which it takes effect, section 22(1) would not make sense. It is clear from
section 22(1) that a review is a discrete event which occurs before the service of the
notice under section 22(2) and that a review is an event which, of itself, can be either
lawful or unlawful, depending on the compliance or otherwise of the review with Part
Three of the Act. It is difficult to see how a review could be lawful or unlawful prior to
service of a notice of review, or how any finding in this respect could be made, if the
review was construed as only occurring on the same date it took effect, which is obviously
a date at least 28 days after the service of the notice (now 90 days). As such, section 22
makes it clear that a review is an event which takes place prior to the service of the notice
under section 22(2) of the Act, and to interpret section 22(1) of the Act in the manner
contended for by the Appellant Landlord would be to introduce an obvious illogicality into
the Act where none occurs when giving the wording of the Act its plain meaning.
The effect of this may be to mean that there is no time limit on the referring of disputes in
respect of unlawful reviews. In particular, where section 22(3) prohibits the referral of
disputes in relation to a rent falling under subsection (1) (i.e. one which is otherwise lawful
under Part Three), it could well be the case that there is, as such, no time limit for
referring a dispute in respect of an unlawful review, regardless of the reason for its
unlawfulness, be it that it occurred inside a prohibited timeframe, or that it set a rent
above market rent. However, that interpretation, as asserted by the Appellant Landlord’s
representatives at this hearing, is only one potential interpretation of section 22(3).
Indeed, it may be possible to give section 22(3) a purposive interpretation, and interpret it
as leading to a presumption, perhaps even a conclusive finding, that a review is lawful
and cannot be challenged in any case where section 22(2) is complied with and where no
challenge is made to the notice inside the required timeframe. As such, it is not definitely
the case that interpreting sections 20 and 22(1) and (2) as outlined above necessarily
results in section 22(3) having to be interpreted in the manner contended for by the
Appellant Landlord. There is no requirement for the Tribunal to make any express finding
in respect of the interpretation of section 22(3) in the present case, and whether an
unlawful review could potentially stand, or whether it could be challenged, even if section
22(2) was complied with and no dispute was referred to the Board inside the required
time frame. Given that the issue is expressly not in dispute in this case, it being clear that
the dispute was validly referred to the Board inside the given time frame, the Tribunal
does not find it necessary to make any finding on this issue. While it may be that the
interpretation of section 22(1) and (2) outlined above could cause difficulties in
interpreting section 22(3) in future, it is clear that to make the finding sought by the
Appellant Landlord in respect of the interpretation of section 20 would cause significantly
more difficulties in the interpretation of numerous other sections of the Act and require the
Tribunal to disregard the otherwise clear wording of a number of other sections of the Act,
and the Tribunal is required to interpret the Act as a whole.
Further, the wording of section 22(1) refers to a dispute which is “otherwise lawful” and
section 22(3) indicates that a dispute “in relation to a rent” falling within subsection (1)
must be referred within the time frame. As such, it is possible to read the section as
prohibiting the referral of a dispute as to the rent, as in the amount of the rent, outside
that time frame, but not otherwise limiting the referring of disputes where an unlawful
review has been carried out. As such, the section appears to prohibit challenges to the
amount of rent set on foot of a lawful review being referred outside the time frame; it does
not appear to set a limit to unlawful reviews, where they are unlawful for a reason other
than setting rent above market rent.
Indeed, it appears that the potentially problematic interpretation of section 22(3) remains,
regardless of how sections 20, 22(1) and (2) are interpreted, and it does not necessarily
follow that the problem only arises where section 22(1) is interpreted as outlined above.
While it could potentially be argued that giving the section the interpretation outlined
above means there is no distinction between the events at paragraphs (a) and (b) of
subsection (3), this would be to ignore the distinction between a date of service and a
date of receipt. It is conceivable that a notice could be served at least 28 days before the
taking effect of a new rent by a landlord, be it by post or by leaving it at a dwelling, but not
actually received until a few days later, less than 28 days before the new rent is to take
effect. As such, there is clearly a possible distinction between the circumstances outlined
in paragraphs (a) and (b) of section 22(3) and the interpretation of section 22(1) outlined
above does not affect this. In any event, it is clearly not necessary to determine the exact
interpretation of section 22(3) in the present case.
Obviously, the effect of the interpretation is a matter to be considered in interpreting
section 20, and whether from a purposive approach the legislature intended such a
system to operate, but the wording of section 20 is clear. Using a purposive, or “common
sense”, approach may appear to lead to a different conclusion in respect of the frequency
of reviews, such that the prohibition is on their taking effect, rather than on their
occurrence. However, such an approach should generally only be utilised where there is
a lack of clarity in the wording in a section or where to give words their literal meaning
would result in an absurd outcome. That is clearly not the case with giving the words
under section 20 their ordinary meaning, despite the fact it may mean that a review
cannot take effect in respect of a new tenancy until after two years and ninety days. The
wording of the Act is clear and to interpret section 20 as prohibiting the taking effect of the
new rent, rather than the occurrence of the review, would be to disregard the clear
wording of that section. Further, given that the Act must be interpreted as a whole, rather
than in piecemeal form, the effects on each other section must also be considered, and
given the findings outlined in respect of section 22(1) and (2) above, and in respect of the
other sections outlined below, it is clear to the Tribunal that the interpretation of section
20 as outlined above is correct and significantly more consistent with the rest of the Act
than the interpretation contended for by the Appellant Landlord.
Support for this proposition can also be found in the wording of section 25(3) of the
Residential Tenancies (Amendment) Act 2015. While this section only took effect after the
service of the notice in the present case, it can nonetheless assist in the interpretation of
section 20, insofar as it shows the intention of the legislature, and the understanding of
the legislature as to the meaning of section 20. Section 25(3) specifies, among other
things: –
“The amendments effected by subsection (1) —
(a) shall not apply in respect of a review of rent under the tenancy of a dwelling carried
out under section 20 of the Principal Act where a review of rent—
(i) is being carried out in accordance with that section before the day on which subsection
(1) comes into operation, or
(ii) has been carried out in accordance with that section before the day on which
subsection (1) comes into operation, pursuant to which a notice under section 22(2) of the
Principal Act has been served on the tenant concerned before the day on which
subsection (1) comes into operation,”
As such, section 25(3) suggests that a review of rent is an event or series of events which
occur prior to the service of the notice. While it may be the case that a notice served after
the enactment of section 25 of the Act of 2015 would be challenged by a tenant, this
would appear to be an evidential matter only: if a landlord could prove that a review had
been carried out or was being carried out before the commencement of section 25, and
that the review was not prohibited by the existing section 20, they would still be entitled to
finalise that review. While section 25(3) was not in force at the date of service of the
notice in the present case, it nonetheless provides some guidance in interpreting what
was intended by the legislature when they passed the original section 20, and whether
the prohibition was on the occurrence of a review of rent or the taking effect of a review of
the rent. Section 25 clearly envisages that a review could have been occurring, and a
notice not yet served, on its coming into effect, under subsection (a)(i). It also clearly
envisages an alternative scenario where a review had occurred, and a notice had been
served, but had not yet taken effect, under subsection (a)(ii), on the date of that
subsection’s commencement. As such, it clearly envisaged that a review of the rent is a
discrete event that occurs before the service of the notice. It is quite clear that subsection
a(i) refers to a review in respect of which a notice has not yet been served. The primary
distinction between subsections (a)(i) and (a)(ii) is that under subsection (a)(i), the review
has not been finalised and no notice has been served, whereas under section (a)(ii), the
review has been carried out and a notice served. To suggest, as the Appellant Landlord
does, that subsection (a)(i) refers to a scenario whereby a notice has been served
disregards entirely the plain wording of both subsections (a)(i) and (ii) and would render
subsection (a)(ii) completely meaningless, as there would be no meaningful distinction
between the two subsections.
Were the Tribunal to interpret section 20 of the Act of 2004 in the way the Appellant
Landlord contends, it would effectively make section 25(3) of the Act of 2015 either
pointless or absurd. It is clear that the legislature interpreted section 20 as providing for
the three-step process (review, notification, effect) when they enacted section 25 of the
Act of 2015. Were section 20 to be interpreted as prohibiting the taking effect of a review,
it would be impossible to square that with the provisions of section 25(3) of the Act of
2015. The relevant wording of section 20 has not changed, the only changes being the
change from “12 months” to “24 months”. As such, the interpretation of section 20 should
not change simply by virtue of the enactment of the Act of 2015. Were the Tribunal to
interpret section 20 as prohibiting reviews taking effect more frequently than once every
twelve months, in respect of reviews which occurred prior to the commencement of the
relevant amendments, but then interpret it as prohibiting reviews occurring, rather than
taking effect, more frequently than once every twenty four months, in respect of reviews
occurring after the commencement of the relevant amendments, it would be applying the
Act in a thoroughly inconsistent way, given that the relevant wording of section 20 under
dispute has not been amended.
Obviously, a review of rent is usually followed very shortly thereafter by the service of the
relevant notice, and one would imagine this could very often occur on the same day, and
this is a factor which would have to be considered in any determination as to when a
review occurred, but section 25(3) clearly envisages that the review, the service of the
notice and the taking effect of the review are three discrete events. Obviously section 25
was not in effect at the date of service of the notice in this case and the interpretation as
outlined above, with regard to the wording of sections 20 and 22, would stand even if
section 25 of the Act of 2015 did not exist, but it does nonetheless add support to the
proposition that the date of review of the rent is different from the date on which it takes
effect.
It would appear to the Tribunal that it is quite probable that a review of the rent would
usually occur on the same date as the service of the notice, unless other evidence was
submitted which showed that the review had occurred before that date. Usually, one
would imagine that when a landlord reviews a rent and decides on a new rent, the tenant
would be notified of that decision at the same time or very shortly thereafter. Certainly,
there would be little point in a rational landlord delaying notifying a tenant after carrying
out a review, especially if an increase in rent was being sought, given that any delay
could delay the date upon which the landlord becomes entitled to receive the new, higher,
rent. As such, it appears that it would generally be a fair inference that the date of service
of the notice is the same as the date of the review, in the absence of any other evidence
surrounding the date of the review.
In respect of the particular facts of this case, applying that interpretation of section 20, it is
clear that a previous notice of rent review was served on the 28th November 2014, and
that the disputed notice was served on the 26th November 2015. What is not clear is
what dates the actual reviews took place on, albeit it is clear that they would have to have
occurred either on or before those dates. In respect of same it is worth noting than in
reply to a query raised by the Tribunal asking is it known on which date their rent review
started and finished on, it was stated,
‘I woudn’t have it on me and I don’t even know honestly’
Therefore the Tribunal notes that the Appellant Landlord was not in a position to say on
precisely which date of their internal rent review.
While the internal procedures of the Appellant Landlord plc may not have been as
efficient in 2014 as they were in 2015, the only objective evidence before the Tribunal is
the date of the notice as served. As such, there is no objective and reliable evidence
before the Tribunal from which it could be inferred that the review in 2014 took place at
least twelve months earlier than the review in 2015. While the date of service of the notice
is not necessarily the date upon which the review occurred, it is the only objective
evidence from which the date of review can be inferred. Theoretically an internal rent
review can be carried out, changed, internally debated, evaluated and/or assessed further
and/or altered on several occasions before the review arrives at finalisation and then the
said notice served on the tenant. Given the evidence before the Tribunal, there is
nothing to prove that the review in 2014 took place earlier in November than the review
which occurred in 2015. As such, the Tribunal is satisfied on the evidence before it, and is
bound to find, on the balance of probabilities, that the review in this case occurred less
than twelve months after the previous review. While the difference is only two days,
without any objective evidence before it to show the actual date of review in 2014 and
2015, on the balance of probabilities, the Tribunal is satisfied that the review in 2015 took
place less than twelve months after the review in 2014 and is thus invalid.
Accordingly, the Tribunal is satisfied that, section 20, as it stood at the date of review and
date of service of the notice in this case, prohibited the occurrence of a rent review more
than once in every twelve months, as opposed to prohibiting its taking effect, and as the
only objective evidence before the Tribunal suggests that the review took place inside
twelve months of the previous review, the Tribunal is bound to find that the review was
invalid and the notice of no effect. As such, the amount of rent payable under the tenancy
remains that pursuant to the notice dated the 28th November 2014
The Tribunal accepts and therefore all monthly rental payments made by the Respondent
Tenant in excess of monthly amount should be refunded, or credit should be given
against future rental payments in this respect.
The Tribunal accepts that the Respondent Tenant has been paying increased monthy
rent at a rate of €1,200.00 per month since 09/01/16 and that this represents an
overpayment on her part. It would appear to the Tribunal that the Respondent Tenant
took this course of action following the receipt of warning letter from the Appellant
Landlord warning her that she was in rent arrears and of the Respondent’s concern about
the possible consequences for her which could flow from same. The Tribunal notes that
the representative on behalf of the Appellant Landlord stated that in circumstances where
their said rent review notice were to be deemed to be invalid by the Tribunal, the
Respondent Tenant would have paid excess rent.
In conclusion the effect of the Tribunals findings and interpretation of section 20, as it now
stands, on future cases may be to mean that rent in respect of new tenancies may not be
reviewed until that tenant has been in occupation for two years, such that it may not take
effect in respect of new tenancies until at least two years and ninety days have passed,
that is the only logical conclusion from the wording of the Act of 2004, as amended, and
there is nothing to suggest this is contrary to what was intended by the legislature. In
respect of existing tenancies, however, it is clear that the rent may still be reviewed every
two years, and take effect every two years. For instance, it is possible to imagine a
tenancy that commenced on the 1st May 2015, whereby a rent review occurs firstly on
the 2nd May 2017 with service of the notice on the same day, taking effect 90 days later
on the 1st August 2017. A review of the rent could then occur again in respect of that
tenancy on or after the 2nd May 2019 taking effect again on the 1st August 2019. As
such, it is only the initial period before a change can take effect that is over two years, as
opposed to in respect of existing tenancies, where the period is clearly two years only.
Further, the Tribunal cannot be swayed by the effect of their decision on interpretation of
section 20. While it may very well be the case that a tenant is not prejudiced (and indeed
may be aided in the current rental market climate) by receiving increased notice of a
change in their rent, and while that appears to be the position in the present case, the
Tribunal cannot disregard the clear wording of section 20. Also, while it may have an
effect on landlords, and their ability to gain the best return possible on their investment,
the Tribunal cannot allow that to affect their interpretation of the otherwise clear wording
of section 20 of the Act. While the Respondent Tenant at hearing did not make express
legal submissions on the interpretation of section 20 of the Act, she clearly asserted that
the decision of the adjudicator was correct and should stand. Also, it is clear that, under
section 104(7) the Tribunal may have regard to the report of the adjudicator and, in the
particular circumstances of this case, the adjudicator’s interpretation of the Act.
In the circumstances of this case, the Tribunal does not find it necessary to make any
finding in respect of the operation of section 86 of the Act and whether that provides or
restricts any jurisdiction to backdate any increase in rent pursuant to a review found to be
valid, given that the present review has been found to be invalid.
Accordingly, in all the circumstances of this case, the Tribunal is satisfied that the notice
of rent review served by the Appellant Landlord on the Respondent Tenants on the 26th
November 2015 was invalid, as it was based on an invalid review.
8. Determination:
Tribunal Reference TR0216-001633
In the matter of Irish Residential Properties REIT Plc (Landlord) and Karolina Madej
(Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The notice of rent increase served on the Tenant on the 26th November 2015 in
respect of the tenancy of the dwelling at 210 Charlestown Place, St. Margaret’s Road,
Finglas, Dublin 11 is invalid.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
11 June 2016.
Signed:
Vincent P. Martin Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001626 / Case Ref No: 0116-23745
Appellant Landlord: Irish Residential Properties REIT Plc
Respondent Tenant: Kelechi Jane Emeana
Address of Rented Dwelling: 2 Sion House, Tyrone Court, Thomas Davis Street
West, Inchicore , Dublin 8, D08E2K0
Tribunal: Thomas Reilly (Chairperson)
Healy Hynes, Dairine Mac Fadden
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 13 April 2016 at 2:30
Attendees: Kelechi Jane Emeana (Respondent Tenant)
Kingsley Okoroji (Respondent Tenant)
Alan Kavanagh(Appellant Landlord’s
Representative)
Janna Petersen (Appellant Landlord’s
Representative)
In Attendance: DTI Stenographers
1. Background:
On 25 January 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 17 February 2016. The Adjudicator determined that:
1. The Notice of Termination served on 20 January 2016 by the Respondent
Landlord on the Applicant Tenant, in respect of the tenancy of the dwelling at
Apartment 2, Sion House, Tyrone Court, Thomas Davis Street, Inchicore , Dublin 8 is
invalid;
2. The rent review carried out by the Respondent Landlord on 19 October 2015
is not valid and the rent on the Tenancy shall remain at €1,300 per calendar month
unless and until lawfully varied.
3. The Applicant Tenants shall continue to pay rent at the monthly rate of €1,300
or proportionate part thereof at the rate of €42.74 per day, unless lawfully varied, and
any other charges as set out in the terms of the tenancy agreement, for each month
or part thereof, until such time as they vacate the above dwelling.
4. An appropriate market rent at the time of the hearing is in the sum of €1,560
per calendar month.
Subsequently the following appeal was received from the Landlord on 23 February 2016.
The ground of the appeal is Other. The appeal was approved by the Board on 25
February 2016
The RTB constituted a Tenancy Tribunal and appointed Dairine Mac Fadden, Healy
Hynes, Thomas Reilly as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Thomas Reilly to be the chairperson of the Tribunal (“the Chairperson”).
On 11 March 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 13 April 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. He confirmed with the Parties that they had
received the relevant papers from the RTB in relation to the case and that they had
received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that while the
Tribunal Hearing was a formal procedure the Tribunal would seek to be as informal as
was possible; that the person who appealed (the Appellant Landlord ) would be invited to
present their case first including the evidence of any witnesses; that there would be an
opportunity for cross-examination by the Respondent Tenant; that the Respondent
Tenant would then be invited to present his case, including the evidence of any witness,
and that there would be an opportunity for cross-examination by the Appellant Landlord.
He said that members of the Tribunal might ask questions of both Parties from time to
time.
The Chairperson explained that following this, the Appellant Landlord and the
Respondent Tenant would be given an opportunity to make a final submission.
He stressed that all evidence would be taken on oath or affirmation and would be
recorded by the official stenographer present, he reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or by up to 6 months imprisonment or both. The
Chairperson drew the Parties attention to Section 7 of the Tribunal Procedures. He asked
the Parties if they had any queries about the procedure, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Parties giving evidence were then sworn in/ affirmed.
5. Submissions of the Parties:
Appellant Landlord’s Case :
Evidence of Ms Joanna Petersen, (referred to as the Appellant Landlord hereafter)
In opening her evidence the Appellant Landlord stated that the commencement date of
the tenancy was 10 November 2014 with the lease having been signed on 7 November
2014.The Appellant Landlord went on to state that her case was that of objecting to the
decision of the Adjudicator in declaring their notice of rent increase served upon the
Respondent Tenant on 19 October 2015 invalid.The Appellant Landlord submitted that
the Adjudicator grounded her decision as follows “It is clear that according to section
24(3)(b)references in part 3 to a review of rent is the oral or written notification of the rent
and therefore the notification sent by the Respondent on 19 October was the rent review
for the purposes of the Residential Tenancies Act 2004. As this rent review has occurred
within the period of 12 months from the commencement date of the tenancy, I have
therefore no choice but to hold that the notice of rent increase is invalid.” The Appellant
Landlord said that they were challenging this decision based on all previous instances
where they had gone to the RTB and where notices of rent increase served upon tenants
within the twelve month period of taking up occupation or within twelve months of the last
rent increase BUT where the increased rent was not due for payment until post the expiry
of the twelve month period were deemed valid. The Appellant Landlord further stated that
while no change was made to the term “rent review” or the interpretation of “ rent review”
in the Residential Tenancies (Amendment) Act 2015 there had been a change in the
interpretation by the RTB. The Appellant Landlord submitted that section 20 of the
Residential Tenancies Act 2004 which deals with the frequency with which rent reviews
may occur, and section 22 of the Act which requires notification to the tenant, are
independent of each other and not tied together; that section 20 could exist without
section 22; that if the notice of rent review was so inextricably linked to the frequency of
rent review, it would have been written as a subsection of section 20 and not as a section
in itself.; that the condition that the tenant is to be notified in writing 28 days before the
new rent is to have effect clearly has no bearing on the frequency of the increase or
decrease in rent. It was further submitted by the Appellant Landlord that in circumstances
where a notice of rent increase has been served upon a tenant and requiring payment of
the increased rental after the expiry of twelve months in occupation and notwithstanding
the service of the said notice being before the expiry of twelve months, that this notice is
valid.
The Appellant Landlord also made submissions that there were inconsistencies in legal
advices which they say were received by the RTB after the RTB sought advice regarding
the date a rent review occurs and extracts of which were furnished by the Appellant
Landlord as part of their Case File prior to the hearing of the case by the Tribunal .
The Appellant Landlord made reference to section 122(1) of the Residential Tenancies
Act 2004 which they said was the provision in the Act to ensure consistency between
determinations. In support of their case that the determinations must be consistent with
one another, the Appellant Landlord submitted seven cases which they said
demonstrated that there had been a systematic change in the RTB’s application of the
Act based on legal advice sought in reaction to the introduction of the Residential
Tenancies (Amendment) Act 2015, where no change in the matter in question was
effected by that Act.
Tenancy commenced Notice of increase served Increased rent from Notice
deemed . Ref
Case 1. 17/10/2014. 19/10/2015 1/11/2015 Valid.
TR1115-001463
2 14/08/2009 17/06/2015 14/08/2015 Valid.
TR1015-001412
3 20/07/2009 29/07/2015&26/08/15 28/09/2015 Valid
DR0915-21022
4 08/01/2015 27/11/2015 08/01/2016 Valid
DR1215-22868
5 18/12/2013 09/10/2015 18/12/2015 Valid
DR1015-21926
6 09/06/2012 29/09/2015 09/11/2015 Valid
DR1115-22173
7 21/05/2004 09/05/2005 31/05/2005 Invalid
TR63/DR193/2006
The Appellant Landlord said that in these seven cases there were 13 different
adjudicators and Tribunal members who all determined that a notice of rent increase
could be served within 12 months of the last increase or tenancy commencement date if
the date the increase was to take effect was 12 months from the last effective date and
that this demonstrated that RTB had been of the opinion that the date in question was
actually the date the last increase took effect and not the date the last notice was served.
The Appellant Landlord said that in the dispute, the subject matter of this Tribunal the
tenant was served their notice of increase on the 19th of October 2015 for an effective
date of the 1st of December 2015, more than 12 months from their tenancy
commencement date; that their notice gave more than 28 days’ notice prior to the
increase taking effect, and therefore their notice complied with all sections of part 3 of the
Residential Tenancies Act 2004. The Appellant Landlord further said that the
Adjudicator’s finding that the notice of 19 October 2015 was invalid was inconsistent
with the previous determinations, as the RTB had ruled that a notice could be served
within 12 months if the date it was to take effect was 12 months or longer from the last
increase or tenancy commencement date.
In relation to the issue of market rent, documentation was presented by the Appellant
Landlord to support the claim that the new rent sought was reflective of the current
market rent as defined by section 20 of the Residential Tenancies Act 2004. Copies of
rent payments for other units within the complex known as Sion house featured opening
and closing balances of rents paid ranging from the Respondent Tenant’s rent at
€1300.00 per month to €1600.00 per month for other tenants in the complex. Supportive
documentation in the form of advertisements on Daft .ie presented examples of
apartments in St Vincent St, Inchicore, offered at €1295 per month, Number 66 Camac
Crescent Inchicore at €1560.00 per month, Number 45 Sion House, Tyrone Court
Inchicore at €1725.00 per month, 29 Sion House Tyrone Court Inchicore at €1600.00
per month and 20 Deerpark, Tyrone Court Inchicore at €1600.00 per month. The
Appellant Landlord confirmed to the Tribunal that all the apartments in the complex were
of similar size and fit out and that the price of units were not varied to reflect location in
the complex or the floor on which they were located.
The Appellant Landlord said that the rent increase sought was in fact below market rent
now as prices quoted previously reflected rents set months ago, for example, 2
September 2015 rent set at €1600.00 per month and another rental set on 3 October at
€1600.00 per month.
Respondent Tenant’s case:
Evidence of Kingsley Okoroji,
He said that he was representing his wife who was also present at the hearing. He
submitted that no notice of a rent increase was delivered by hand to the dwelling contrary
to the assertion of the Appellant Landlord that such a document was hand delivered. He
stated that that was the reason they had sought Adjudication as they believed the
absence of a notice rendered the procedure invalid.
He said that the size of the dwelling was smaller than others in the complex and further
said that on their first viewing of the dwelling he and his wife had viewed all the other
apartments in the complex and were offered the dwelling at €1300.00 per month on the
basis that it was smaller than another unit on offer at €1400.00 per month. He stated
that in January 2016 he and his wife viewed a dwelling of a similar size to his located at
Thomas Davis Street which was on offer at €1200.00 per month. Asked if he had any
other comparators, the Respondent referred to a dwelling at St Vincent Street West,
Inchicore which was featured on Daft.ie. He stated this dwelling was on offer at €1295.00
per month and claimed it was similar to the current dwelling. He conceeded that they
were willing to increase the monthly payment, however not up to the figure sought by the
Appellant Landlord of €1560.00. On being questioned by the Tribunal, the Appellant
Landlord confirmed that service of the notice of rent increase by hand related to
placement of the document in the postbox of the dwelling and this was carried out
successfully.
Final submissions:
Appellant Landlord, The Appellant stated that their issues were two fold,
1. To determine the validity of the notice of rent increase served on 19 October 2015 on
the Respondent Tenant;
2.To determine the market rent for the dwelling occupied by the Respondent Tenant. The
Appellant submitted that they had demonstrated that within the complex, rents in excess
of that which they sought from the Respondent were being achieved and that the rent
they sought was now below market rent.
Finally the Appellants stated that they believe they have demonstrated that cases similar
to the one under discussion have previously been considered valid by the RTB in
circumstances where the notice was served prior to the end of twelve months but where
the increase did not become due for payment until after the period of twelve months had
elapsed.
Respondent Tenant:
He stated that they did not receive a notice of rent increase. The first they became
aware of a problem was when they received a notice of rent arrears. The Tenant said he
was willing to pay an increased rent but not €1560.00 per month as requested by the
Landlord.
6. Matters Agreed Between the Parties
The Tenant continues in occupation.
Rent is €1,300.00 per month.
A deposit of €1,300.00 was paid to the Appellant Landlord.
The deposit is retained by the Appellant Landlord.
A written Lease agreement is in place between the parties
No rent arrears save the arrears arising in respect of the alleged shortfall between the
rent prior to the review and the revised rent set out in the notification to the Respondent
Tenant.
7. Findings and Reasons:
Having considered all the documentation before it, and having considered the evidence
presented by the Parties, the Tribunals findings and reasons therefor are set out
hereunder.
7.1 finding :
The Tribunal finds that the rent review carried out by the Appellant Landlord on 19
October 2015 was unlawful .
Reason
Section 20 (1) of the Residential Tenancies Act 2004 provides that a review of the rent
under a tenancy of a dwelling may not occur (a) more frequently than once in each period
of 12 months, nor (b) in the period of 12 months beginning on the commencement of the
tenancy.
The Tribunal has carefully considered the submissions put forward by the Appellant
Landlord as regards the definition of the date of the review of the rent for the purpose of
calculating the period of 12 months referred to in section 20 of the Act. The Tribunal was
referred to inconsistencies which the Appellant Landlord submitted existed in the legal
advices adduced in the evidence. The Appellant Landlord also referred to previous
determinations of adjudicators and other tribunals in support of its submission that a
notice of rent increase could be served within 12 months of the commencement date of
the tenancy if the date the increase was to take effect was 12 months from that date.
Section 103 (6) of the Act provides that the Tribunal is independent in the performance of
its functions and the Tribunal finds having carefully considered all the submissions of the
parties and from its own examination of the Act that the date of the notice served in this
case on the 19th October 2015 is the date of the review of the rent for the purposes of
section 20 of the Act rather than the date the revised rent was to take effect being the 1st
December 2015.
In making this finding, the Tribunal has taken the view that there are a number of stages
required in any review of rent for the purpose of Part 3 of the Act. The first stage must be
the review of the rent required to determine what the new market rent should be, followed
by the second stage of setting the new rent in accordance with section 19 and the third
stage is the notification of the new rent in accordance with section 22. The final stage is
the date on which the new rent takes effect as provided for in that section 22. The review
of the rent and the setting of the new rent could occur before the notification of the new
rent or it could happen on the same day or they could be three separate dates. In the
Tribunal’s view, the date of the review will be the date of the notification of the new rent in
accordance with section 22 unless the landlord adduces evidence to satisfy an
adjudicator or tribunal that the review occurred on an earlier date. The Act clearly makes
a distinction between these various stages and further in section 24 (3) of the Act defines
the setting of the rent in the context of a review as including the oral or written notification
of the rent. In the Tribunal’s view this supports the position that there can be an oral or
written notification at the point of the setting of the rent following the review which is
separate and distinct from the subsequent mandatory notification of that revised rent in
writing, required pursuant to section 22 of the Act. These distinct stages are also reflected
in the transitional arrangements set out in section 25 of the Residential Tenancies
(Amendment) Act 2015 and in particular sub-section 3 (a) (i) which in the Tribunal’s view
refers to a situation of where the review is in the process of being carried out but the
section 22 notification has not been sent and in sub-section (3) (a) (ii) which refers to a
situation of where the review has been carried out and the notification served but the
effective date is after the date of commencement of the amendments brought about by
the 2015 Act. Further the Tribunal has noted that section 22 (3) which provides for the
referral of disputes in relation to the setting of a new rent, requires the referral to be made
before the date from which the new rent is to have effect or the expiry of 28 days from the
date of notification of the new rent, whichever is the later. In the Tribunal’s view, this also
supports the view that the review has occurred before the effective date. Finally, a
Tribunal in considering whether a rent is the market rent for a dwelling must examine the
rent at a particular point in time and the appropriate date must be the date the review
occurred rather than the date on which the reviewed rent is to take effect.
In the case before it the Tribunal is satisfied that the commencement date of the tenancy
was the 10th November 2014. There was only one notice served as regards the review
of the rent namely the notification dated 19th October 2015 which the Tribunal finds in
this particular case was the date of the review of the rent for the purposes of section 20 of
the Act.
It follows therefore that as the review occurred within the 12 month period referred to in
section 20 (1) of the Act, it is unlawful.
Section 122 of the Residential Tenancies Act, 2004, in respect of which the Appellant
Landlord made submissions, sets out powers which may be exercised by the Board of the
RTB and is therefore not a matter for this Tribunal
7.2 FINDING : The notice of Termination served on 20 January 2016 by the Appellant
Landlord on the Respondent Tenant, in respect of the tenancy of the dwelling at Apt 2,
Sion House, Tyrone Court, Thomas Davis Street,Inchicore, Dublin 8 is invalid.
Reason:
I The Notice of Termination served by the Appellant Landlord on 20 January 2016 stated
the reason for the termination to be failure to pay rent. It was accepted by the Appellant
Landlord that the only arrears they were seeking were in respect of the shortfall between
the rent prior to the review and the revised rent. The Tribunal has found that the rent
review was unlawful and it follows therefore that as there was no failure on the
Respondent Tenant’s part to pay the rent, that the Notice of Termination served was
invalid.
8. Determination:
Tribunal Reference TR0216-001626
In the matter of Irish Residential Properties REIT Plc (Landlord) and Kelechi Jane
Emeana (Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1.The rent review carried out by the Appellant Landlord on 19 October 2015 was
unlawful and the rent of the tenancy shall remain at €1,300.00 per calendar month
unless and until lawfully varied.
2. The Respondent Tenants shall continue to pay rent at the monthly rate of €1,300.00
unless lawfully varied, and any other charges as set out in the terms of the tenancy
agreement, for each month or part therof, until such time as they vacate the above
dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
17 May 2016.
Signed:
Thomas Reilly Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0217-002187 / Case Ref No: 0117-31280
Appellant Tenant: Frank Lynn, Tanya Browne
Respondent Landlord: Richard Armstrong
Address of Rented Dwelling: 56 Thornberry, Letterkenny , Co Donegal,
F92EYY8
Tribunal: Eoin Byrne (Chairperson)
Finian Matthews, Nesta Kelly
Venue: Council Chamber, Sligo County Council, County
Hall, Riverside, Co Sligo
Date & time of Hearing: 05 April 2017 at 2:30
Attendees: John Gerald Grennan (also known as Gerry
Grennan) (Respondent Landlord’s representative).
In Attendance: RTB appointed stenographer/logger.
1. Background:
On the 6th January, 2017, the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 76 of the Act. The Tenant also made an
application to the RTB on the 19th January, 2017. The matters were jointly referred to an
adjudication which took place on the 25th January, 2017. The adjudicator determined
that:-
1. The Notice of Termination served by the Applicant/Respondent Landlord, on 2
December 2016 on the Respondent/Applicant Tenants in respect of the tenancy of the
dwelling at 56 Thornberry, Letterkenny, Co Donegal, is valid.
2. The Respondent/Applicant Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 7 days of the date of issue of
the Determination Order, by the Board.
3. The Respondent/Applicant Tenants shall pay the total sum of €1783.11 to the
Applicant/Respondent Landlord, within 28 days of the date of issue of the Determination
Order, being rent arrears of €1283.11 and damages of €500 for failing to comply with the
obligations of the tenancy in respect to the tenancy of the above dwelling.
4. The Respondent/Applicant Tenants shall also pay any further rent outstanding from 25
January 2016 to the Applicant/Respondent Landlord at the rate of €700.00 per month or
proportionate part thereof at the rate of €23.01 per day, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month or part
thereof, until such time as they vacate the above dwelling.
5. The Respondent/Applicant Tenants application, in regard to Invalid Notice, Anti-Social
Behaviour, Breach of Fixed Term Lease, Breach of Landlord Obligations, Deposit
Retention, Rent More Than Market Rate, and Illegal Eviction, in respect of the tenancy of
the above dwelling, are not upheld.
Subsequently a valid appeal was received from the Tenant by the RTB on the 14th
February, 2017. The RTB constituted a Tenancy Tribunal (“the Tribunal”) and appointed
Eoin Byrne, Finian Matthews and Nesta Kelly as Tribunal members, pursuant to Section
102 and 103 of the Act and appointed Eoin Byrne to be the chairperson of the Tribunal
(“the Chairperson”).
The parties were subsequently notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing. On the 5th April, 2017, the
Tribunal convened a hearing at 2:30pm at the Council Chamber, Sligo County Council,
County Hall, Riverside, Co Sligo.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
There was no further documentation submitted at hearing.
4. Procedure:
The Chairperson asked the party present to identify himself and to identify in what
capacity he was attending the Tribunal. The Chairperson confirmed with the party present
that he had received the relevant papers from the RTB in relation to the case and that he
had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed. The Chairperson
reminded the party present that knowingly providing false or misleading statements or
information to the Tribunal was an offence punishable by a fine of €4,000 or up to 6
months imprisonment or both.
The Chairperson also reminded the party present that as a result of the RTB decision
making procedures, the Board would make a Determination Order which would be issued
to the parties.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant was not present. Less than one hour prior to the Tribunal, the
Appellant Tenant contacted the RTB to withdraw his appeal.
Respondent Landlord’s Case:
The Respondent Landlord’s representative at hearing indicated he was satisfied with the
order that had been made at adjudication. However, in light of the late withdrawal of the
case, which he had not been informed of in advance, he indicated that he wanted to apply
for his expenses of attending the Tribunal hearing. He advised the Tribunal that he had
driven from Letterkenny that afternoon, which was approximately one and a half hours
each way, and that it had cost him time at work. He stated that the fuel cost was
approximately €30 and the cost of his time was approximately €100.
6. Matters Agreed Between the Parties
N/A – the Appellant Tenant was not present.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefore, are set out
hereunder.
Finding 1: The Tribunal find that where the appeal is withdrawn, the adjudicator’s
determination should be upheld, with the addition of €130 costs in respect of the
Respondent Landlord’s representative’s costs of attending the hearing.
Reasons: The Tribunal is satisfied that where the appeal has been withdrawn, the
adjudicator’s determination should be upheld. It is inappropriate for the Tribunal to deal
with the substance of the dispute any further, in accordance with section 84(5) of the Act.
While the Respondent Landlord’s representative was satisfied with the determination
reached at adjudication, he did nonetheless apply for his costs of such travel and
attendance. In light of the evidence given to the Tribunal, and the obvious fact the
Respondent Landlord’s representative had to travel from Letterkenny to Sligo for the
hearing, the Tribunal is satisfied on the balance of probabilities that the costs incurred in
this respect include at least €30 in respect of fuel costs and €100 in respect of the
Respondent Landlord’s representative’s time in travelling to and attending at the location
of the Tribunal hearing. As this was caused solely as a result of the extremely late
withdrawal of the appeal by the Appellant Tenant, the Tribunal is satisfied that it is
appropriate to exercise its discretion under section 82(6) and (7) and award the
Respondent Landlord’s representative his costs of travelling to and attending at the place
set for the Tribunal hearing. This amount does not comprise legal or professional costs
for the purposes of section 5(3), rather the costs of travelling to and attending at the
hearing.
As such, the Order of the Board should reflect the decision of the adjudicator, with the
additional payment of €130 to the Respondent Landlord to reflect the costs incurred by
his representative in attending the hearing. In respect of the payment of this sum, the
Tribunal is satisfied it should be paid within 7 days of the date of issue of the Board, given
the right of the Respondent Landlord to a prompt remedy.
8. Determination:
Tribunal Reference TR0217-002187
In the matter of Frank Lynn, Tanya Browne (Tenant) and Richard Armstrong
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The adjudicator’s decision stands;
2. In addition, the Respondent/Applicant Tenant shall also pay €130 costs to the
Applicant/Respondent Landlord, in respect of his costs of attending at the Tribunal
hearing, within 7 days of the date of issue of the Order of the Board.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
05 April 2017.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0217-002187 / Case Ref No: 0117-31280
Appellant Tenant: Frank Lynn, Tanya Browne
Respondent Landlord: Richard Armstrong
Address of Rented Dwelling: 56 Thornberry, Letterkenny , Co Donegal,
F92EYY8
Tribunal: Eoin Byrne (Chairperson)
Finian Matthews, Nesta Kelly
Venue: Council Chamber, Sligo County Council, County
Hall, Riverside, Co Sligo
Date & time of Hearing: 05 April 2017 at 2:30
Attendees: John Gerald Grennan (also known as Gerry
Grennan) (Respondent Landlord’s representative).
In Attendance: RTB appointed stenographer/logger.
1. Background:
On the 6th January, 2017, the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 76 of the Act. The Tenant also made an
application to the RTB on the 19th January, 2017. The matters were jointly referred to an
adjudication which took place on the 25th January, 2017. The adjudicator determined
that:-
1. The Notice of Termination served by the Applicant/Respondent Landlord, on 2
December 2016 on the Respondent/Applicant Tenants in respect of the tenancy of the
dwelling at 56 Thornberry, Letterkenny, Co Donegal, is valid.
2. The Respondent/Applicant Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 7 days of the date of issue of
the Determination Order, by the Board.
3. The Respondent/Applicant Tenants shall pay the total sum of €1783.11 to the
Applicant/Respondent Landlord, within 28 days of the date of issue of the Determination
Order, being rent arrears of €1283.11 and damages of €500 for failing to comply with the
obligations of the tenancy in respect to the tenancy of the above dwelling.
4. The Respondent/Applicant Tenants shall also pay any further rent outstanding from 25
January 2016 to the Applicant/Respondent Landlord at the rate of €700.00 per month or
proportionate part thereof at the rate of €23.01 per day, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month or part
thereof, until such time as they vacate the above dwelling.
5. The Respondent/Applicant Tenants application, in regard to Invalid Notice, Anti-Social
Behaviour, Breach of Fixed Term Lease, Breach of Landlord Obligations, Deposit
Retention, Rent More Than Market Rate, and Illegal Eviction, in respect of the tenancy of
the above dwelling, are not upheld.
Subsequently a valid appeal was received from the Tenant by the RTB on the 14th
February, 2017. The RTB constituted a Tenancy Tribunal (“the Tribunal”) and appointed
Eoin Byrne, Finian Matthews and Nesta Kelly as Tribunal members, pursuant to Section
102 and 103 of the Act and appointed Eoin Byrne to be the chairperson of the Tribunal
(“the Chairperson”).
The parties were subsequently notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing. On the 5th April, 2017, the
Tribunal convened a hearing at 2:30pm at the Council Chamber, Sligo County Council,
County Hall, Riverside, Co Sligo.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
There was no further documentation submitted at hearing.
4. Procedure:
The Chairperson asked the party present to identify himself and to identify in what
capacity he was attending the Tribunal. The Chairperson confirmed with the party present
that he had received the relevant papers from the RTB in relation to the case and that he
had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed. The Chairperson
reminded the party present that knowingly providing false or misleading statements or
information to the Tribunal was an offence punishable by a fine of €4,000 or up to 6
months imprisonment or both.
The Chairperson also reminded the party present that as a result of the RTB decision
making procedures, the Board would make a Determination Order which would be issued
to the parties.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant was not present. Less than one hour prior to the Tribunal, the
Appellant Tenant contacted the RTB to withdraw his appeal.
Respondent Landlord’s Case:
The Respondent Landlord’s representative at hearing indicated he was satisfied with the
order that had been made at adjudication. However, in light of the late withdrawal of the
case, which he had not been informed of in advance, he indicated that he wanted to apply
for his expenses of attending the Tribunal hearing. He advised the Tribunal that he had
driven from Letterkenny that afternoon, which was approximately one and a half hours
each way, and that it had cost him time at work. He stated that the fuel cost was
approximately €30 and the cost of his time was approximately €100.
6. Matters Agreed Between the Parties
N/A – the Appellant Tenant was not present.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefore, are set out
hereunder.
Finding 1: The Tribunal find that where the appeal is withdrawn, the adjudicator’s
determination should be upheld, with the addition of €130 costs in respect of the
Respondent Landlord’s representative’s costs of attending the hearing.
Reasons: The Tribunal is satisfied that where the appeal has been withdrawn, the
adjudicator’s determination should be upheld. It is inappropriate for the Tribunal to deal
with the substance of the dispute any further, in accordance with section 84(5) of the Act.
While the Respondent Landlord’s representative was satisfied with the determination
reached at adjudication, he did nonetheless apply for his costs of such travel and
attendance. In light of the evidence given to the Tribunal, and the obvious fact the
Respondent Landlord’s representative had to travel from Letterkenny to Sligo for the
hearing, the Tribunal is satisfied on the balance of probabilities that the costs incurred in
this respect include at least €30 in respect of fuel costs and €100 in respect of the
Respondent Landlord’s representative’s time in travelling to and attending at the location
of the Tribunal hearing. As this was caused solely as a result of the extremely late
withdrawal of the appeal by the Appellant Tenant, the Tribunal is satisfied that it is
appropriate to exercise its discretion under section 82(6) and (7) and award the
Respondent Landlord’s representative his costs of travelling to and attending at the place
set for the Tribunal hearing. This amount does not comprise legal or professional costs
for the purposes of section 5(3), rather the costs of travelling to and attending at the
hearing.
As such, the Order of the Board should reflect the decision of the adjudicator, with the
additional payment of €130 to the Respondent Landlord to reflect the costs incurred by
his representative in attending the hearing. In respect of the payment of this sum, the
Tribunal is satisfied it should be paid within 7 days of the date of issue of the Board, given
the right of the Respondent Landlord to a prompt remedy.
8. Determination:
Tribunal Reference TR0217-002187
In the matter of Frank Lynn, Tanya Browne (Tenant) and Richard Armstrong
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The adjudicator’s decision stands;
2. In addition, the Respondent/Applicant Tenant shall also pay €130 costs to the
Applicant/Respondent Landlord, in respect of his costs of attending at the Tribunal
hearing, within 7 days of the date of issue of the Order of the Board.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
05 April 2017.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0217-002187 / Case Ref No: 0117-31280
Appellant Tenant: Frank Lynn, Tanya Browne
Respondent Landlord: Richard Armstrong
Address of Rented Dwelling: 56 Thornberry, Letterkenny , Co Donegal,
F92EYY8
Tribunal: Eoin Byrne (Chairperson)
Finian Matthews, Nesta Kelly
Venue: Council Chamber, Sligo County Council, County
Hall, Riverside, Co Sligo
Date & time of Hearing: 05 April 2017 at 2:30
Attendees: John Gerald Grennan (also known as Gerry
Grennan) (Respondent Landlord’s representative).
In Attendance: RTB appointed stenographer/logger.
1. Background:
On the 6th January, 2017, the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 76 of the Act. The Tenant also made an
application to the RTB on the 19th January, 2017. The matters were jointly referred to an
adjudication which took place on the 25th January, 2017. The adjudicator determined
that:-
1. The Notice of Termination served by the Applicant/Respondent Landlord, on 2
December 2016 on the Respondent/Applicant Tenants in respect of the tenancy of the
dwelling at 56 Thornberry, Letterkenny, Co Donegal, is valid.
2. The Respondent/Applicant Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 7 days of the date of issue of
the Determination Order, by the Board.
3. The Respondent/Applicant Tenants shall pay the total sum of €1783.11 to the
Applicant/Respondent Landlord, within 28 days of the date of issue of the Determination
Order, being rent arrears of €1283.11 and damages of €500 for failing to comply with the
obligations of the tenancy in respect to the tenancy of the above dwelling.
4. The Respondent/Applicant Tenants shall also pay any further rent outstanding from 25
January 2016 to the Applicant/Respondent Landlord at the rate of €700.00 per month or
proportionate part thereof at the rate of €23.01 per day, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month or part
thereof, until such time as they vacate the above dwelling.
5. The Respondent/Applicant Tenants application, in regard to Invalid Notice, Anti-Social
Behaviour, Breach of Fixed Term Lease, Breach of Landlord Obligations, Deposit
Retention, Rent More Than Market Rate, and Illegal Eviction, in respect of the tenancy of
the above dwelling, are not upheld.
Subsequently a valid appeal was received from the Tenant by the RTB on the 14th
February, 2017. The RTB constituted a Tenancy Tribunal (“the Tribunal”) and appointed
Eoin Byrne, Finian Matthews and Nesta Kelly as Tribunal members, pursuant to Section
102 and 103 of the Act and appointed Eoin Byrne to be the chairperson of the Tribunal
(“the Chairperson”).
The parties were subsequently notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing. On the 5th April, 2017, the
Tribunal convened a hearing at 2:30pm at the Council Chamber, Sligo County Council,
County Hall, Riverside, Co Sligo.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
There was no further documentation submitted at hearing.
4. Procedure:
The Chairperson asked the party present to identify himself and to identify in what
capacity he was attending the Tribunal. The Chairperson confirmed with the party present
that he had received the relevant papers from the RTB in relation to the case and that he
had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed. The Chairperson
reminded the party present that knowingly providing false or misleading statements or
information to the Tribunal was an offence punishable by a fine of €4,000 or up to 6
months imprisonment or both.
The Chairperson also reminded the party present that as a result of the RTB decision
making procedures, the Board would make a Determination Order which would be issued
to the parties.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant was not present. Less than one hour prior to the Tribunal, the
Appellant Tenant contacted the RTB to withdraw his appeal.
Respondent Landlord’s Case:
The Respondent Landlord’s representative at hearing indicated he was satisfied with the
order that had been made at adjudication. However, in light of the late withdrawal of the
case, which he had not been informed of in advance, he indicated that he wanted to apply
for his expenses of attending the Tribunal hearing. He advised the Tribunal that he had
driven from Letterkenny that afternoon, which was approximately one and a half hours
each way, and that it had cost him time at work. He stated that the fuel cost was
approximately €30 and the cost of his time was approximately €100.
6. Matters Agreed Between the Parties
N/A – the Appellant Tenant was not present.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefore, are set out
hereunder.
Finding 1: The Tribunal find that where the appeal is withdrawn, the adjudicator’s
determination should be upheld, with the addition of €130 costs in respect of the
Respondent Landlord’s representative’s costs of attending the hearing.
Reasons: The Tribunal is satisfied that where the appeal has been withdrawn, the
adjudicator’s determination should be upheld. It is inappropriate for the Tribunal to deal
with the substance of the dispute any further, in accordance with section 84(5) of the Act.
While the Respondent Landlord’s representative was satisfied with the determination
reached at adjudication, he did nonetheless apply for his costs of such travel and
attendance. In light of the evidence given to the Tribunal, and the obvious fact the
Respondent Landlord’s representative had to travel from Letterkenny to Sligo for the
hearing, the Tribunal is satisfied on the balance of probabilities that the costs incurred in
this respect include at least €30 in respect of fuel costs and €100 in respect of the
Respondent Landlord’s representative’s time in travelling to and attending at the location
of the Tribunal hearing. As this was caused solely as a result of the extremely late
withdrawal of the appeal by the Appellant Tenant, the Tribunal is satisfied that it is
appropriate to exercise its discretion under section 82(6) and (7) and award the
Respondent Landlord’s representative his costs of travelling to and attending at the place
set for the Tribunal hearing. This amount does not comprise legal or professional costs
for the purposes of section 5(3), rather the costs of travelling to and attending at the
hearing.
As such, the Order of the Board should reflect the decision of the adjudicator, with the
additional payment of €130 to the Respondent Landlord to reflect the costs incurred by
his representative in attending the hearing. In respect of the payment of this sum, the
Tribunal is satisfied it should be paid within 7 days of the date of issue of the Board, given
the right of the Respondent Landlord to a prompt remedy.
8. Determination:
Tribunal Reference TR0217-002187
In the matter of Frank Lynn, Tanya Browne (Tenant) and Richard Armstrong
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The adjudicator’s decision stands;
2. In addition, the Respondent/Applicant Tenant shall also pay €130 costs to the
Applicant/Respondent Landlord, in respect of his costs of attending at the Tribunal
hearing, within 7 days of the date of issue of the Order of the Board.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
05 April 2017.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0217-002187 / Case Ref No: 0117-31280
Appellant Tenant: Frank Lynn, Tanya Browne
Respondent Landlord: Richard Armstrong
Address of Rented Dwelling: 56 Thornberry, Letterkenny , Co Donegal,
F92EYY8
Tribunal: Eoin Byrne (Chairperson)
Finian Matthews, Nesta Kelly
Venue: Council Chamber, Sligo County Council, County
Hall, Riverside, Co Sligo
Date & time of Hearing: 05 April 2017 at 2:30
Attendees: John Gerald Grennan (also known as Gerry
Grennan) (Respondent Landlord’s representative).
In Attendance: RTB appointed stenographer/logger.
1. Background:
On the 6th January, 2017, the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 76 of the Act. The Tenant also made an
application to the RTB on the 19th January, 2017. The matters were jointly referred to an
adjudication which took place on the 25th January, 2017. The adjudicator determined
that:-
1. The Notice of Termination served by the Applicant/Respondent Landlord, on 2
December 2016 on the Respondent/Applicant Tenants in respect of the tenancy of the
dwelling at 56 Thornberry, Letterkenny, Co Donegal, is valid.
2. The Respondent/Applicant Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 7 days of the date of issue of
the Determination Order, by the Board.
3. The Respondent/Applicant Tenants shall pay the total sum of €1783.11 to the
Applicant/Respondent Landlord, within 28 days of the date of issue of the Determination
Order, being rent arrears of €1283.11 and damages of €500 for failing to comply with the
obligations of the tenancy in respect to the tenancy of the above dwelling.
4. The Respondent/Applicant Tenants shall also pay any further rent outstanding from 25
January 2016 to the Applicant/Respondent Landlord at the rate of €700.00 per month or
proportionate part thereof at the rate of €23.01 per day, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month or part
thereof, until such time as they vacate the above dwelling.
5. The Respondent/Applicant Tenants application, in regard to Invalid Notice, Anti-Social
Behaviour, Breach of Fixed Term Lease, Breach of Landlord Obligations, Deposit
Retention, Rent More Than Market Rate, and Illegal Eviction, in respect of the tenancy of
the above dwelling, are not upheld.
Subsequently a valid appeal was received from the Tenant by the RTB on the 14th
February, 2017. The RTB constituted a Tenancy Tribunal (“the Tribunal”) and appointed
Eoin Byrne, Finian Matthews and Nesta Kelly as Tribunal members, pursuant to Section
102 and 103 of the Act and appointed Eoin Byrne to be the chairperson of the Tribunal
(“the Chairperson”).
The parties were subsequently notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing. On the 5th April, 2017, the
Tribunal convened a hearing at 2:30pm at the Council Chamber, Sligo County Council,
County Hall, Riverside, Co Sligo.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
There was no further documentation submitted at hearing.
4. Procedure:
The Chairperson asked the party present to identify himself and to identify in what
capacity he was attending the Tribunal. The Chairperson confirmed with the party present
that he had received the relevant papers from the RTB in relation to the case and that he
had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed. The Chairperson
reminded the party present that knowingly providing false or misleading statements or
information to the Tribunal was an offence punishable by a fine of €4,000 or up to 6
months imprisonment or both.
The Chairperson also reminded the party present that as a result of the RTB decision
making procedures, the Board would make a Determination Order which would be issued
to the parties.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant was not present. Less than one hour prior to the Tribunal, the
Appellant Tenant contacted the RTB to withdraw his appeal.
Respondent Landlord’s Case:
The Respondent Landlord’s representative at hearing indicated he was satisfied with the
order that had been made at adjudication. However, in light of the late withdrawal of the
case, which he had not been informed of in advance, he indicated that he wanted to apply
for his expenses of attending the Tribunal hearing. He advised the Tribunal that he had
driven from Letterkenny that afternoon, which was approximately one and a half hours
each way, and that it had cost him time at work. He stated that the fuel cost was
approximately €30 and the cost of his time was approximately €100.
6. Matters Agreed Between the Parties
N/A – the Appellant Tenant was not present.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefore, are set out
hereunder.
Finding 1: The Tribunal find that where the appeal is withdrawn, the adjudicator’s
determination should be upheld, with the addition of €130 costs in respect of the
Respondent Landlord’s representative’s costs of attending the hearing.
Reasons: The Tribunal is satisfied that where the appeal has been withdrawn, the
adjudicator’s determination should be upheld. It is inappropriate for the Tribunal to deal
with the substance of the dispute any further, in accordance with section 84(5) of the Act.
While the Respondent Landlord’s representative was satisfied with the determination
reached at adjudication, he did nonetheless apply for his costs of such travel and
attendance. In light of the evidence given to the Tribunal, and the obvious fact the
Respondent Landlord’s representative had to travel from Letterkenny to Sligo for the
hearing, the Tribunal is satisfied on the balance of probabilities that the costs incurred in
this respect include at least €30 in respect of fuel costs and €100 in respect of the
Respondent Landlord’s representative’s time in travelling to and attending at the location
of the Tribunal hearing. As this was caused solely as a result of the extremely late
withdrawal of the appeal by the Appellant Tenant, the Tribunal is satisfied that it is
appropriate to exercise its discretion under section 82(6) and (7) and award the
Respondent Landlord’s representative his costs of travelling to and attending at the place
set for the Tribunal hearing. This amount does not comprise legal or professional costs
for the purposes of section 5(3), rather the costs of travelling to and attending at the
hearing.
As such, the Order of the Board should reflect the decision of the adjudicator, with the
additional payment of €130 to the Respondent Landlord to reflect the costs incurred by
his representative in attending the hearing. In respect of the payment of this sum, the
Tribunal is satisfied it should be paid within 7 days of the date of issue of the Board, given
the right of the Respondent Landlord to a prompt remedy.
8. Determination:
Tribunal Reference TR0217-002187
In the matter of Frank Lynn, Tanya Browne (Tenant) and Richard Armstrong
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The adjudicator’s decision stands;
2. In addition, the Respondent/Applicant Tenant shall also pay €130 costs to the
Applicant/Respondent Landlord, in respect of his costs of attending at the Tribunal
hearing, within 7 days of the date of issue of the Order of the Board.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
05 April 2017.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0117-002140 / Case Ref No: 1016-29801
Appellant Tenant: Emma Lyons
Respondent Landlord: Caroline Cureton
Address of Rented Dwelling: Forest View, Coole , Ardee , Co Louth, A92K20K
Tribunal: John Conran (Chairperson)
Fintan McNamara, Michelle O’ Gorman
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 10 February 2017 at 10:30
Attendees: Caroline Cureton (Respondent Landlord)
Ronnie Owens (Respondent Landlord’s
Representative)
Adrian Goslin (Respondent Landlord’s
Representative)
In Attendance: DTI Stenographer
1. Background:
On 19 October 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 17 November 2016. The Adjudicator determined that:
1. The Notice of Termination served on the 4th of October 2016 by the Respondent
Landlord on the Applicant Tenant , in respect of the tenancy of the dwelling at Forest
View, Coole, Ardee, County Louth, is invalid.
2. The Applicant Tenant shall pay the sum of €9,000.00 to the Respondent Landlord,
within 42 days of the date of issue of the Order being rent arrears in respect of the
tenancy of the above dwelling.
3. The Applicant Tenant shall pay the sum of €500.00 to the Respondent Landlord
within 42 days of the date of issue of the Order, being damages for not allowing the
Respondent Landlord access at reasonable intervals for the purposes of inspecting
the dwelling pursuant to s. 16(c) of the Acts.
Subsequently the following appeal was received from the Tenant on 06 January 2017.
The grounds of the appeal are Invalid Notice of termination, Unlawful termination of
tenancy (Illegal eviction), Breach of fixed term lease, Breach of landlord obligations and
Other. The appeal was approved by the Board on 09 January 2017.
The RTB constituted a Tenancy Tribunal and appointed John Conran, Fintan McNamara,
Michelle O’ Gorman as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed John Conran to be the chairperson of the Tribunal (“the Chairperson”).
On 08 February 2017 the Parties were notified of the constitution of the Tribunal and were
provided with details of the date, time and venue set for the hearing.
On 07 March 2017 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
As the Appellant Tenant did not attend it was not necessary to consider the Tribunal
procedures.
5. Submissions of the Parties:
None
6. Matters Agreed Between the Parties
None
7. Findings and Reasons:
As the Appellant Tenant failed to attend before the Tribunal and gave no cause for her
non-attendance, the Tribunal has deemed her appeal to be abandoned.
8. Determination:
Tribunal Reference TR0117-002140
In the matter of Emma Lyons (Tenant) and Caroline Cureton (Landlord) the Tribunal
in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Tenants application in respect of the tenancy of the dwelling at Forest
View, Coole, Ardee, Co Louth is abandoned, and as such, the decision of the
Adjudicator stands.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
08 March 2017.
Signed:
John Conran Chairperson
For and on behalf of the Tribunal
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1116-002063 / Case Ref No: 0916-29177
Appellant Tenant: Colin McGettrick
Respondent Landlord: Damien Gibney
Address of Rented Dwelling: 12 Clonshaugh Woods, The Oaks, Coolock , Dublin 17,
Tribunal: Eoin Byrne (Chairperson)
Ciara Doyle, Dervla Quinn
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2,
Date & time of Hearing: 20 February 2017 at 10:30
Attendees:
There was no attendance from either the Appellant Tenant or the Respondent Landlord.
In Attendance:
RTB appointed stenographer/logger.
1. Background:
On 21st September, 2016, the Tenant made an application to the Residential Tenancies Board (hereinafter referred to as “the RTB”) pursuant to section 76 of the Residential Tenancies Act 2004, as amended (“the Act”). The matter was referred to an adjudication which took place on 14th October, 2016. The adjudicator determined that:-
“The Respondent Landlord shall pay the total sum of €5,700.00 to the Applicant Tenant within 56 days of the date of the issue of this Order, being damages for the consequences of the unlawful termination of the tenancy of the dwelling known as 12 Clonshaugh Woods, The Oaks, Coolock, Dublin 17 together with the sum of €700.00 being the unjustifiably retained portion of the security deposit of €950.00 having deducted the sum of €250.00 being rent arrears in respect of the tenancy of the above dwelling.”
Subsequently a valid appeal was received from the Tenant by the RTB on 16th November, 2016 which was approved by the Board on 17th November, 2016. The grounds of the appeal were Breach of Fixed Term Lease, Deposit Retention, Unlawful Termination of Tenancy and Other. The RTB constituted a Tenancy Tribunal (“the Tribunal”) and appointed Eoin Byrne, Ciara Doyle and Dervla Quinn as Tribunal members, pursuant to section 102 and 103 of the Act and appointed Eoin Byrne to be the chairperson of the Tribunal (“the Chairperson”). The parties were notified of the constitution of the Tribunal and provided with details of the date, time and venue set for the hearing. On 20th February, 2017, the Tribunal
convened a hearing at 10:30am at RTB Offices, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
There was no further documentation submitted at hearing.
4. Procedure:
As the parties did not attend, no further procedures could be outlined to the parties. The Tribunal considered the appeal abandoned and would advise the board accordingly. In the event that the Board considers the appeal to be abandoned, the procedures in section 121 may be followed in relation to the adjudicator’s report. The Determination Order of the Board may be appealed to the High Court on a point of law only.
5. Submissions of the Parties:
As neither party attended, nor any representatives on their behalf, no further submissions were made to the Tribunal.
6. Matters Agreed Between the Parties
N/A – in the absence of the parties, no further matters could be agreed.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence submitted and the report of the adjudicator, the Tribunal’s findings and reasons therefor are set out hereunder. Finding: The Tribunal deems that the Appellant Tenant’s appeal has been abandoned. Reasons: The Tribunal is satisfied that where neither party attended the hearing, and in particular where the Appellant Tenant did not attend, nor arrange for representation on his behalf at the Tribunal Hearing, the appeal has been abandoned by the Appellant Tenant. As such, the Tribunal is satisfied that the Board may follow the procedures under section 121(8), where the appeal has been abandoned, and make an order in the terms of the adjudicator’s determination, under section 121(1)(b) of the Act.
8. Determination:
Tribunal Reference TR1116-002063
In the matter of Colin McGettrick (Tenant) and Damien Gibney (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The Appellant Tenant’s appeal, in respect of the tenancy of 12 Clonshaugh Woods, The Oaks, Coolock, Dublin 17, is deemed abandoned and the decision of the Adjudicator still stands.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on 25 February 2017.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0616-001844 / Case Ref No: 0516-26301
Appellant Landlord: Thomas Murphy
Respondent Tenant: Christopher Rigney
Address of Rented Dwelling: Apartment A, 6 North Quay, Drogheda , Louth,
Tribunal: Ciara Doyle (Chairperson)
Eoin Byrne, Nesta Kelly
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 10 August 2016 at 10:30
Attendees: Thomas Murphy (Appellant Landlord)
Christopher Rigney (Respondent Tenant)
Johnnie McCoy (Respondent Tenant’s
Representative)
Finian Brannigan (Respondent Tenant’s
Representative)
In Attendance: DTI Sternographers
1. Background:
On 12 May 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 13 June 2016. The Adjudicator determined that:
The Respondent Landlord shall pay the sum of €7,500.00 to the Applicant within 28
days of the making of this Order being damages for the unlawful and illegal eviction
of the Applicant from the dwelling at Apartment A, 6 North Quay, Drogheda, Co.
Louth.
Subsequently the following appeal was received from the Landlord on 30 June 2016. The
ground of the appeal is Unlawful termination of tenancy (Illegal eviction). The appeal was
approved by the Board on 04 July 2016
The RTB constituted a Tenancy Tribunal and appointed Nesta Kelly, Ciara Doyle, Eoin
Byrne as Tribunal members pursuant to Section 102 and 103 of the Act and appointed
Ciara Doyle to be the chairperson of the Tribunal (“the Chairperson”).
On 07 July 2016 the Parties were notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing.
On 10 August 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
– District Court Licensing Search submitted by the Respondent Tenant
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson requested the parties to
confirm that they had received the relevant papers from the RTB in relation to the case.
The Tribunal also requested the parties to confirm that they had received the RTB
document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present his case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present his case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and that based on that recording a
transcript could be made available to the Tribunal if necessary to assist it in preparing its
report on the dispute, or to the parties for a fee. She reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson said that members of the Tribunal would ask questions from time to time
to assist in clarifying the issues in dispute between the parties. The Chairperson
explained that should the parties indicate that they would be able to resolve the dispute
through negotiation, the Tribunal would facilitate any such settlement.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only.
5. Submissions of the Parties:
Appellant Landlord’s Submissions:
Thomas Murphy indicated that while he had appealed, he was not the Landlord in this
dispute as his premises, which included the dwelling, has been purchased by a company
called Polaris Properties Company Limited and he no longer owned it. He said he
appeared in his capacity as agent, duly authorised by the said company.
He said while this property, including the dwelling, had been sold in or around August
2014, he had stayed on as manager of the property and was duly authorised by the
Company to retain the rents from the dwelling for his own use and benefit.
He said he had leased the dwelling to the Tenant in September 2012 and they had
agreed an initial rent of €400 per month to include all utilities. He said this later changed
to €100 per week after the Tenant had fallen in to arrears. He told the Tribunal that while
the Tenant had been in rent arrears during the course of the tenancy, he was making no
claim for rent arrears.
He said that the rent was below market rent and the company who had purchased the
property from him had wanted to increase it. He said he was struggling to get the rent he
was owed from the Tenant already and did not consider a rent increase would be
sustainable for him. He also noted the Tenant’s continuing absence from the property and
believed he stayed with his girlfriend during the week and only used the dwelling after
socialising in town.
He said he asked the Tenant to move out for a few days to enable him to have fire safety
works carried out to the dwelling and the Tenant agreed.
He packed up Tenant’s belongings and put them on the landing outside the dwelling. This
was agreed with the Tenant, to facilitate the works.
However, he admitted to the Tribunal there had been no works required and he had
concocted the story to obtain vacant possession of the dwelling in order to move another
Tenant in, at a higher rent.
He admitted he had unlawfully terminated the Tenancy and that he should have served
the Tenant with a proper notice of termination.
Respondent Tenant’s Submissions:
The Tenant said his tenancy commenced on the 9 September 2012 and the agreed rent
was €400 per month. He said he later agreed to pay €100 per week as he found it easier
to keep up with his rent by paying small amounts more regularly. He said while he did
have arrears of rent from time to time during the course of the tenancy all arrears had
been cleared.
He submitted that Mr Murphy was at all times the Landlord of the dwelling and furnished
evidence in the form of a licensing search to show he was the owner of the dwelling,
along with Registry of Deeds searches. He also made reference to his lease and social
welfare forms completed in respect of the tenancy and signed by Mr. Murphy as Landlord,
which were on the case file.
He said he received a call in mid-April 2016 from the Landlord who asked him to come
downstairs to the public house owned and operated by him. He was told the Fire Officer
had been to the premises and works needed to be carried out which works would take
three to four days and he would need to move out temporarily while the works were
completed.
He said he left the Dwelling on the 18th April 2016 as requested but left all his belongings
there. He said he received a phone call from the Landlord on the 20th April 2016 when he
was advised that workmen were in and that his belongings needed to be moved.
He suggested his belongings could be moved to the bathroom in order to facilitate the
works but the Landlord refused to do this, on the basis that all the walls in the flat needed
work. He permitted the Landlord to move his belongings to the landing outside the
dwelling to facilitate the works.
He said he went for breakfast in the public house on the 25th April 2016 and asked if the
work was done yet and the Landlord laughed and said it would be another few days. He
said he gave the Landlord €100 rent on that date.
On the 29th April 2016 he was in the pub again when two members of staff asked if he
still lived in the Dwelling as they had seen number of people come in and enquire as to
the letting of an apartment. He then went to investigate and found that a new lock had
been fitted to the entrance to the building in respect of which he had no key however as
the door was on the latch he was able to gain entry to the building.
He then let himself in to the dwelling and heard a call asking if it was “Jo Jo”. The
Applicant submitted that Jo Jo was the Landlord’s nick name.
He said that the layout to the Dwelling was changed and a bed was now present in the
sitting room area. A partially clothed man emerged from what had been his bedroom and
asked who he was. He told the man that the Dwelling was his home however, the man
present advised that he had been there a week and that he should talk to the Landlord.
The Landlord said he didn’t own the Dwelling anymore and that some other people did
and he should speak to them as they had put another Tenant in. The Landlord agreed to
text him the contact details of these gentlemen however this never occurred.
He said he got most of his belongings back with the exception of 2 pieces of art work,
some cleaning equipment and a plate set. He estimated the missing items to be worth
around €250. He said for a number of weeks he had slept on various couches but was
now living with his father which was unsuitable for him in a number of respects. In
particular the house was out of town and as he didn’t drive it would take approximately 40
minutes to walk in to town. He said he had made efforts to find alternative
accommodation but could not find anything suitable to date and he had now been 16
weeks out of his home.
6. Matters Agreed Between the Parties
– None
7. Findings and Reasons:
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons are set out hereunder.
Finding: The Appellant, Thomas Murphy, was the Landlord in respect of the tenancy of
the dwelling.
Reasons: The definition of a Landlord under the Act is “the person for the time being
entitled to receive (otherwise as agent for another person) the rent paid in respect of a
dwelling by the tenant thereof and, where the context so admits, includes a person who
has ceased to be so entitled by reason of the termination of the tenancy”.
While the Tribunal notes the Appellant’s evidence that he no longer owns the dwelling,
the Tribunal relies on the evidence of the Appellant that he was lawfully entitled to receive
the rent from the tenancy of the dwelling for his own benefit at all times, on the basis of an
agreement he had with the new owner of the dwelling. For this reason, the Tribunal finds
he is the Landlord.
Finding: The Landlord unlawfully terminated the tenancy of the dwelling at Apartment A, 6
North Quay, Drogheda, Co. Louth and the Landlord shall pay to the Tenant €6,000, being
damages for the consequences of unlawfully terminating the Tenant’s tenancy of the
dwelling.
Reasons: The Landlord admitted that he concocted a story in relation to works that
needed to be carried out to the dwelling, at the request of the Fire Officer, in order to
dupe the Tenant in to moving out so that he could gain vacant possession of the dwelling
and re-let it to a new Tenant at a higher rent.
He did not give the Tenant an opportunity to pack his belongings and instead packed
them himself, leaving them in the landing outside the dwelling for the Tenant to collect.
The Tribunal accepts the Tenant’s evidence that personal belongings valued at
approximately €250 were missing by the time be collected them.
It was noted the Tenant had a Part IV Tenancy and would have been entitled to a
minimum of 84 days’ notice had the Landlord terminated the tenancy in accordance with
the Act. In addition, the Landlord could not have terminated the tenancy without citing a
breach of Tenant obligations or alternatively relying on one of the grounds set out in
Section 34 of the Act, none of which appear to be relevant to this dispute. The Landlord
showed a complete disregard for the law in the manner in which he terminated the
Tenancy and in so doing deprived the Tenant of the rights and protections afforded to him
under the Act, in particular the security of tenure afforded to him in having a Part IV
tenancy. The Tribunal takes this in to consideration in its award of damages, together with
effect the Landlord’s action has had and continues to have on the Tenant.
8. Determination:
Tribunal Reference TR0616-001844
In the matter of Thomas Murphy (Landlord) and Christopher Rigney (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
1.The Appellant Landlord shall pay the sum of €6,000.00 to the Respondent Tenant in
two consecutive monthly payments of €3,000 on the 28th day of each month
commencing the next month after the date of issue of this Order, being damages for
the unlawful termination of the tenancy of the dwelling at Apartment A, 6 North Quay,
Drogheda, Co. Louth
2.The enforcement of this Order for such payment of €6,000 will be deferred and the
total sum owing reduced by the cumulative sum paid in the monthly instalments made
by the Appellant Landlord to the Respondent Tenant on each due date until such time
as the total sum of €6,000 has been paid in full.
3.For the avoidance of doubt, any default in the payment of any of the monthly
instalments shall act to cancel any further deferral and the balance due at the date of
default of any such monthly payment shall immediately become due and owing to the
Respondent Tenant.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
16 August 2016.
Signed:
Ciara Doyle Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001459 / Case Ref No: 0915-20877
Appellant Tenant: Aine Ni Neachtain
Respondent Landlord: Patrick McGrath, Marie McGrath
Address of Rented Dwelling: 23 A Rockbarton Green, Salthill , Galway, H91R527
Tribunal: Helen-Claire O’Hanlon (Chairperson)
Vincent P. Martin, James Egan
Venue: Executive Lounge, Hotel Meyrick, Eyre Square,
Galway
Date & time of Hearing: 07 June 2016 at 2:00
Attendees: Marie McGrath (Appellant Landlord)
Owen Swaine (Legal Representative on behalf of
the Landlords)
Áine Ní Neachtain (Respondent Tenant)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 11 September 2015 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 15 October 2015. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €3,500 to the Applicant Tenant within
28 days of the date of issue of the Order, being damages of €3,500 for the consequences
of unlawfully terminating the Applicant Tenant’s tenancy of 23 A Rockbarton Green,
Salthill, Galway.
Subsequently the following appeals were received. The first was submitted by the Tenant on
17 November 2015. The grounds of this appeal are Unlawful termination of tenancy (Illegal
eviction) and Other. This appeal was approved by the Board on 21 December 2015.
The Landlord also submitted an appeal on 17 November 2015. The grounds of this appeal
are Unlawful termination of tenancy (Illegal eviction) and Notice of Termination.
The RTB constituted a Tenancy Tribunal and appointed James Egan, Vincent P. Martin,
Helen-Claire O’Hanlon as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Helen-Claire O’Hanlon to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of the
date, time and venue set for the hearing.
On 07 June 2016 the Tribunal convened a hearing at Executive Lounge, Hotel Meyrick, Eyre
Square, Galway.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”. Both parties
confirmed that they had done so and it was confirmed that the parties had read and
understood them. The Chairperson explained the procedure which would be followed;
that the Tribunal was a formal procedure but that it would be as informal as was possible.
The Chairperson said that members of the Tribunal might ask questions of both parties
from time to time. She also stated that the parties must follow any instructions given by
the Chairperson and directed that neither party should interrupt the other when oral
testimony is being given.
The Chairperson explained that the Tenant would be invited to present her case first and
that there would be an opportunity for cross-examination on behalf of the Landlord. The
Landlord would then be invited to present her case, and then there would be an
opportunity for cross-examination by the Tenant. The Chairperson explained that
following this, both parties would be given an opportunity to make a final submission.
The Chairperson indicated that she would be willing to clarify any queries in relation to the
procedures either then or at any stage during the course of the Tribunal hearing.
It was further explained to the parties that all other matters in dispute between them,
which are the subject of Tribunal reference number TR1015-001394, and which had
previously been heard by the same Tribunal panel, would not be reventilated in the
context of this Tribunal hearing and that, while the Tribunal had the benefit of having
heard that evidence as a backdrop to this dispute, the determination of the Tribunal in this
matter would be confined to the issue of the lawfulness or otherwise of the termination of
the Tenant’s tenancy.
The Chairperson stated that all evidence would be taken on Oath or Affirmation and be
recorded by the official stenographer present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence. It
was explained to the parties that as a result of this Hearing, the Board would make a
Determination Order which would be issued to the parties and could be appealed to the
High Court on a point of law only pursuant to Section 123(3) of the 2004 Act. All persons
giving evidence to the Tribunal were then sworn in.
5. Submissions of the Parties:
The Appellant / Respondent Tenant’s Case:
The Tenant outlined that in the context of the various disagreements between herself and
the Landlords, they had indicated that they wished her to leave, and she had indicated
that she did not accept their position and did not intend to vacate the dwelling. The
Tenant gave evidence that she was not in a position to vacate until the Landlords
returned her security deposit as she required that money to secure another tenancy. The
parties were awaiting the outcome of a previous dispute to the RTB. The Tenant gave
evidence that prior to her alleged eviction she had put notes in the door of her dwelling for
the attention of the Landlords that the property was condemned but that the Landlord
would unlawfully let herself in to remove the notes.
On the 3rd of September 2015 the Tenant stated that she arrived home at the dwelling
and the front door had been boarded up. She stated that she had only been out at an
appointment on that day and had not been gone for any extensive period of time. She
said that the Landlord was looking out the window at her but would not grant her re-entry.
She claimed that she felt bullied and harassed and that she called the Gardaí to tell them
that she had been locked out and that her belongings were inside. She stated that she
explained to the Garda that the Landlord resided in the dwelling next door. After the
Gardaí made enquiries she was notified that her belongings were in Barons Self Storage
and she was provided with some details about how to retrieve them. It was getting late
and she could not access her home so she took various steps to get reinstated, such as
contacting the RTB, seeking legal advice and attending at the courts. She said that all
such efforts were unsuccessful. Eventually she claimed that she had to visit the Local
Authority at City Hall and seek the assistance of homeless services there. She obtained
short term emergency accommodation in a women and children shelter but it was only a
one-night solution as the only room available was for a family. She gave evidence that it
was very distressing not having any roof over her head and having no belongings. When
she went to the shelter she said that she did not even have the most basic personal
effects, such as towels or hairbrush. She said that she was provided with basic items
such as bedclothes and a toothbrush in the shelter.
She had been told that the self-storage facility was a 24-hour facility but when she went
there on the evening of the 3rd of September it was closed. Ultimately it was very difficult
to access her belongings as she claimed that Barons had not been notified that the items
were hers. She said that she was given to understand that the Landlord had stored the
items in her own name.
The Tenant claimed that as a result of the illegal eviction as alleged she had been left
with no home, nothing to wear and that she was in financial distress. She was meant to
be going to a family wedding the following day and she had great difficulty retrieving her
outfit for the wedding. She stated that she managed to retrieve something to wear and
went to the wedding because she did not want to let anyone down, but she was extremely
tired as it had been such a stressful night.
When the Tenant did eventually access her belongings and sort through them she
claimed that many items were missing or damaged. She claimed that personal
correspondence had been opened and some of her documents had been tampered with.
Receipts and bank statements which she had been storing in plastic boxes were gone.
She claimed further that oil had been spilled over many items of kitchenware from a
George Forman grill, that cosmetic wax had been spilled on other items, that diplomas
and certificates that she had been awarded were gone, that many other items were
inexplicably broken, and that some of the Landlords’ own property had become mixed in
with hers. She claimed that due care was not taken by the Landlords or the movers when
removing her property and that she had suffered extreme loss as a result. The Tenant
claimed that she had been hoping to set herself up in a beauty and massage treatment
business as she had qualified as a therapist before starting the Masters in NUIG. She
claimed that she had been gathering equipment for same, much of which had been lost or
damaged when her belongings were removed. The Tenant stated that she was denied a
means of earning a living as a result.
The Tenant gave evidence that she had been destitute for most of the following month.
She outlined that she had to sleep in her car a number of nights, and this entailed driving
around looking for a safe place to park. She said that she travelled enormous distances
looking for places to stay and retrieving her clothes and other belongings piecemeal from
the storage unit. She said that she sometimes slept on the beach during the daytime. She
claimed that she incurred enormous expense eating out because she had no cooking or
food storage facilities. In response to cross examination she accepted that she had family
living in the same county but said that there was no always availability in their house and
also said that she was embarrassed to have to admit that she had been evicted.
She submitted that the Council had condemned her dwelling when she had reported the
substandard conditions in which she was living, and that instead of making that situation
good, or compensating her in any way, she was being punished by the Landlords. She
submitted that it was most unjust that she would have to suffer the consequences of the
Landlords’ breaches of obligations.
The Tenant gave evidence that she finally secured accommodation on the 1st of October.
She stated that it is permanent accommodation and she was very relieved to get it. She
claimed that the experience had been very stressful and difficult for her; she had tried to
stay positive but that had been very hard. She had sought the assistance of various
services, including An Garda Síochána during that time but outlined that she was
dissatisfied with the reception she had received. She gave evidence that lately one
Sergeant has been much more supportive and receptive to her and this has been a great
comfort.
The Tenant claimed that it has been a lengthy and difficult process documenting all the
damaged items and trying to remember and itemise all the personal property which has
gone missing. She submitted that this in itself was extremely stressful and that the loss of
documents made it more difficult for her to compile her case. She claimed that she had
never been treated so badly, that she had been robbed, bullied and intimidated. The
Tenant claimed that the events have cost her a lot, both financially and in respect of her
health.
It was put to the Tenant in cross examination that the RTB had already heard a dispute in
respect of the validity of a notice of termination and had determined the matter in the
Landlord’s favour and that she was overholding. The Tenant was asked what steps she
had taken to secure alternative accommodation and she responded that she was looking
every day. However, she stated that because of her strained financial circumstances and
because she needed a deposit, she was unable to secure anywhere else.
The Respondent / Appellant Landlords’ Case:
The first named Respondent / Appellant Landlord gave evidence and confirmed that she
was appearing on behalf of both Landlords. She was represented by her solicitor who
made some submission on her behalf and she also gave direct evidence in respect of
matters.
At the outset, it was submitted on her behalf that she admitted to the unlawful eviction
and accepted that it was not in accordance with the legislative provisions or the correct
procedure. However, it was submitted on her behalf that her actions were justified and
reasonable in the circumstances. It was submitted that the Landlords had at all times
been prepared to abide by the legislation and the procedures available to them by way of
the RTB dispute resolution process. They had complied with, and were awaiting
determination arising from that process. However, it was submitted on behalf of the
Landlords that the Tribunal should weigh that against what was a triggering mechanism in
very particular circumstances.
The first named Landlord gave evidence of very serious medical difficulties experienced
by the second named Landlord, arising initially from an accident in 2013. The effects of
this accident resulted in a prolonged period of hospitalisation in 2014 which had resulted
in considerable improvement. However, the first named Landlord emphasised that it is
imperative that undue stress be avoided as this may have a serious negative
consequence in respect of her husband’s health.
The Landlord claimed that relations had originally been good between the parties, and
she had sometimes had tea and a chat with the Tenant. However, over the course of the
tenancy, and particularly after the dwelling had been reported to the Council by the
Tenant, relations between the parties had deteriorated. She stated that the Tenant had
taken to leaving notes in her window which were annoying and distasteful and contained
accusations which she said were untrue and which were very embarrassing when seen
by neighbours and others.
She claimed that the demands of the Tenant had become increasingly irrational over time
and said that her efforts to reason with the Tenant over time fell on deaf ears. She
claimed that there was a combination of factors over an extended period of time which
created particular distress for her husband. She outlined that her actions were a result of
a cumulative period hardship and the situation had simply become intolerable, particularly
because the Tenant essentially lived in a unit in their garden so there was no means of
removing themselves from the conflict.
Finally, a concern arose about the fire alarm in the dwelling. The Landlord claimed that
the issue could not be resolved and it was causing extreme anxiety to her husband. She
claimed that she felt she could not allow her husband’s health to continue to be impacted
by this ongoing bad behaviour of the tenant. She accepted that she wrongfully took the
law into her own hands and terminated the tenancy by way of locking the Tenant out. She
claimed that she had no choice as the Tenant had made it clear she was not leaving and
her behaviour was becoming more inflammatory. She claimed that she should not have to
wait until there was a fire in the house before taking action.
She claimed that in the end she just snapped and on the 3rd of September she arranged
for a removal company to attend and carefully package up the Tenant’s belongings. She
stated that she contacted the Gardaí to notify them of what she was doing, in case there
was any breach of the peace. She stated that she hired a security guard at great expense
and paid for storage facilities for the Tenant’s belongings.
It was submitted on behalf of the Landlords that their candour should be taken into
consideration and that the unusual set up where the dwelling was adjoining their home
should also be considered by the Tribunal. It was emphasised on their behalf that the
Landlords were living with the situation day and night.
It was further submitted on behalf of the Landlords that there were credibility issues in
respect of the Tenant’s evidence. Reference was made to the Tenant’s claim that she did
not know what her rights were or what she could do when problems arose in her tenancy.
It was submitted that this was undermined by the referral by the Tenant of a previous
dispute to the RTB in respect of an earlier tenancy. Further, it was submitted that the
Tenant had misinterpreted and misstated reports and correspondence from State bodies
in the course of her evidence, such as her assertion that the dwelling was “condemned”
by the Council, which, it was submitted, was not in fact the case.
6. Matters Agreed Between the Parties
(i) The tenancy commenced in September 2011.
(ii) The tenancy ended on the 3rd of September 2015.
(iii) The monthly rent by the end of the tenancy was €460.
(iv) A security deposit of €500 was paid by the Respondent Tenant and is retained in full
by the Appellant Landlords.
7. Findings and Reasons:
Finding No. 1
The termination of the Appellant / Respondent Tenant’s tenancy on the 3rd of September
2015 was unlawful.
Reasons:
In all the circumstances, the Tribunal finds that, in contravention of the provisions of subsection
(1) of section 58 of the Act, the tenancy was terminated by means of a process
other than one provided for under the Act, that the Tenant was accordingly unlawfully
evicted and deprived of her tenancy, and that the Tenant is entitled to damages in the
sum of €4,500 for that breach of landlord obligations. This sum is arrived at in the context
of a maximum jurisdiction of €20,000. The tenancy was terminated by means of exclusion
of the Tenant and her belongings. The Tribunal has regard to the fact that the Tenant was
not deprived of her belongings but notes that it was very inconvenient for the Tenant to
have to retrieve them piecemeal.
It is accepted on the evidence that the experience was very distressing for the Tenant
and that she suffered discomfort, inconvenience and personal embarrassment for a
period of time, until she acquired an alternative dwelling at the start of October 2015.
However, the Tenant was fortunate to have available the assistance of family members in
the same county, although it is accepted that this was not all the time and she was
obliged to do some travelling around and her situation was in flux for almost a month.
The damages are assessed at the lower-mid range of the scale at €4,500, having regard
to the degree of distress, loss, expense and inconvenience incurred by the Tenant but
also taking account of the circumstances where the Landlords had obtained a decision
from the RTB that the Tenant was overholding following a valid Notice of Termination.
The Tribunal commends the candour of the Landlords in approaching the issue of the
breach of s.58(1). However, the explanation profferred is not accepted to amount to
mitigation in circumstances where the mechanism of the RTB dispute resolution process
was in train and was yet to conclude. Although the first named Landlord gave evidence to
the Tribunal that she was desperate to find a conclusion to an intolerable situation, and
excluded the Tenant arising from that desperation, it was noted by the Tribunal that she
was not so desperate that she considered returning the Tenant’s deposit, which, on the
evidence, may have sufficed to facilitate the Tenant’s departure.
With regard to the additional claim by the Tenant in respect of loss and damage to
personal belongings by the storage / removal personnel, the Tribunal accepts that some
oil may have been spilled from a cooking appliance onto other items in that box, as
appears from photographs submitted by the Tenant. However, the Tribunal does not
accept that there was sufficient evidence of the wholescale breakage, damage or loss
claimed by the Tenant. In that regard, a further sum of €200 is awarded for damage to
personal belongings. It may be open to the Tenant to pursue a separate claimin another
forumagainst the removal / storage personnel in the event that she can properly
particularise her losses in that regard.
All other matters in dispute between the parties, and arising from the same tenancy, are
dealt with in the Determination of the Tribunal bearing reference number TR1015-001394.
8. Determination:
Tribunal Reference TR1115-001459
In the matter of Aine Ni Neachtain (Tenant) and Patrick McGrath, Marie McGrath
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Respondent / Appellant Landlords shall pay the total sumof €4,700.00 to the
Appellant / Respondent Tenant, within 28 days of the date of issue of the
Determination Order, being damages of €4,500.00 for breach of landlord obligations in
unlawful termination of the tenancy contrary to s.58(1) of the Act, plus €200.00 for
damage to personal belongings of the Appellant / Respondent Tenant arising from the
unlawful termination, in respect of the tenancy of the dwelling at 23A Rockbarton
Green, Salthill, Galway.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
18 July 2016.
Signed:
Helen-Claire O’Hanlon Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0516-001786 / Case Ref No: 0416-25545
Appellant Landlord: Jack O’ Driscoll
Respondent Tenant: Yvonne Murphy
Address of Rented Dwelling: 3 Glenhilton, Herbert Road, Bray , Wicklow,
Tribunal: Brian Regan (Chairperson)
Louise Moloney, John Conran
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 24 August 2016 at 2:30
Attendees: DTI Stengraphers
In Attendance: Yvonne Murphy (Respondent Tenant)
Jon Vickers (Respondent Tenant’s Representative)
Ciaran Maher (Appellant Landlord’s Representative)
Jack O’Driscoll (Appellant Landlord)
1. Background:
On the 12th April, 2016, the Respondent Tenant made an application to the Residential
Tenancies Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to
an adjudication which took place on 24th may, 2016 The Adjudicator determined as follows:
“1. The Respondent Landlord shall pay the total sum of €1,053.37 to the Applicant
Respondent Tenant, within 14 days of the date of issue of the Order, being damages
for breach of Landlord obligations under s. s. 12(1)(b) of the Residential Tenancies
Act 2004 due to the Respondent Landlord’s obligation to keep the dwelling at 3
Glenhilton, Herbert Road, Bray, Co. Wicklow A98 CD68 in good and habitable repair.
2. The Applicant Respondent Tenants tenancy of the dwelling at 3 Glenhilton,
Herbert Road, Bray, Co. Wicklow A98 CD68 is deemed terminated pursuant to s. 37
of the Residential Tenancies Act 2004”
The Board, at its meeting on 26 May 2016, approved the referral to a Tenancy Tribunal of
the appeal. The RTB constituted a Tenancy Tribunal and appointed Brian Regan, John
Conran and Louise Moloney as Tribunal members, pursuant to Section 102 and 103 of the
Act and appointed Brian Regan to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of the
date, time and venue set for the hearing.
On 24th day of August, 2016, the Tribunal convened a hearing at the Tribunal Room, RTB,
Second Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
– A certified copy of a statement from Mr Peter Emerson, on behalf of the Appellant
Landlord.
– A receipt from OD Services, in the amount of €630, from the Respondent Tenant.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present his case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellants.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
5. Submissions of the Parties:
Mr Ciarán Maher (the Appellant Landlord’s agent) gave evidence and made submissions
on behalf of the Appellant Landlord. He stated that this was a ground floor unit,
comprising two bedrooms, a living room and a kitchen. He stated that the tenancy
commenced on the 1st October, 2012. He said that a deposit of €900 per month was
paid. He said that there was a fire in the dwelling on the 30th October, 2015, causing
significant damage, and as a result of which the Respondent Tenant vacated the
dwelling. He said that at the time, the rent payable was €900, paid up to the 31st October,
2015.
The Appellant Landlord’s agent advised that the fire originated in the hot press, and this
was confirmed by reference to the Fire Report, completed by Wicklow County Council
Fire Services on the 30th October, 2015. The Appellant Landlord’s agent then produced a
wooden grave cross, measuring approximately 1 metre in length, which he said had been
recovered from the hot press of the dwelling. He suggested that this item, belonging to
the Respondent Tenant, had been recovered from the hot press, and was the cause of
the fire. When the Tribunal asked The Appellant Landlord’s agent if his suggestion was
based on any expert report, in the form of an engineering or forensic report, he advised
that it was not.
The Appellant Landlord’s agent advised that significant works had to be undertaken in the
dwelling after the fire. These works commenced on the 19th January, 2016, and
continued until April, 2016. He said at that time the dwelling was put back on the market,
for rent. He confirmed that the dwelling was not specifically offered to the Respondent
Tenant, although The Appellant Landlord’s agent said that the Respondent Tenant was
told that there was a viewing on a specified date and that she was welcome to attend at
this viewing. He said that it was ultimately let for the sum of €1,375 per month, to a party
other than the Respondent Tenant to this dispute.
Regarding the specific issues raised by the Respondent Tenant, The Appellant Landlord’s
agent accepted that the Respondent Tenant was forced to spend 11 nights in a hotel
immediately after the fire, and that she had accommodation costs in the sum of €980 in
this regard. The Appellant Landlord’s agent advised that the Landlord had an insurance
policy in place which covered the accommodation costs up to the amount of €755.66. The
Appellant Landlord’s agent said that this settlement offer was made by the insurer, with a
deduction made for the fact that the Respondent Tenant did not have to pay for her
normal rented accommodation when she was in the hotel. The Appellant Landlord’s agent
said that he did not think it was reasonable that the Landlord should have to pay anything
to the Respondent Tenant over and above that.
Regarding the issue of the tenancy, The Appellant Landlord’s agent advised that it was
both his view, and the view of the Landlord, that once the Respondent Tenant had moved
out of the dwelling, and it was refurbished, the Landlord was not obliged to offer the
dwelling back to the Respondent Tenant. In this regard, The Appellant Landlord’s agent
stated that as far as he was concerned, the tenancy had terminated, and he advised that
the Respondent Tenant’s deposit had been returned to her on the 7th January, 2016. The
Appellant Landlord’s agent advised that the Respondent Tenant rang Mr Seán Dixon in
his office at that time, and requested that the deposit be returned to her. The Appellant
Landlord’s agent advised that he sought advice from Threshold regarding the Landlord’s
duties, and was told that he was not obliged to offer the dwelling back to her once the
works were completed. The Appellant Landlord’s agent advised that in his experience
once a dwelling was damaged by fire, or something of that nature, the tenancy came to
an end. He specifically referred to the situation regarding commercial leases in that
regard.
Regarding the building works, The Appellant Landlord’s agent has advised that these
works were delayed by approximately 1 month, owing to the fact that the Respondent
Tenant refused to remove her personal belongings from the dwelling prior to the end of
January, 2016. He advised that the said belongings could not be accommodated in the
dwelling. The Appellant Landlord’s agent advised that the Landlord’s insurer withheld the
sum of €900 (amounting to one month’s rent) given the delay in carrying out the works.
When questioned by the Tribunal regarding the Respondent Tenant’s email to Mr Dixon
of his office, dated the 8th October, 2015, in which she mentioned that the hot water
switch in the hot press was not working correctly, The Appellant Landlord’s agent advised
that the issue raised regarding the hot water switch was not a serious matter, and was
only a secondary item in the context of the email sent. He advised that the Respondent
Tenant had hot water available to her in the apartment, and he said that no action was
taken in response to the Respondent Tenant`s complaint in respect of the hot water
switch.
The Appellant Landlord’s agent submitted that the Respondent Tenant was not as badly
off as she was making out, and indeed when he attempted to contact her in July, 2016,
she was abroad, on holidays.
The Appellant Landlord’s agent stated that the Landlord was looking to recover the sum
of €900 from the Respondent Tenant (resenting the deduction made by his insurer in
respect of the one month’s rent) together with The Appellant Landlord’s agent’s own fees,
in the sum of €1,250 plus VAT.
Respondent Tenant’s Case:
The Respondent Tenant said that she emailed the letting agent on the 8th October, 2015
regarding two issues: the front door, and the switch for the timer for the hot water in the
hot press. The Respondent Tenant advised that the issue regarding the switch for the
timer was never investigated prior to the fire on the 30th October, 2015. Regarding the
fire, the Respondent Tenant advised that this occurred while she was asleep, and she
called the fire services immediately. She was unable to say for certain how it started, only
noting that the fire report stated that it was electrical in nature. She rejected the
suggestion that the grave cross that The Appellant Landlord’s agent had produced had
been left in the hot press, and she submitted that had it been, it would have been
scorched or extensively damaged, which it was not. The Respondent Tenant advised that
she regarded it as extremely upsetting that her deceased’s mother’s grave cross would
be brought into the Tribunal and used in this way.
The Respondent Tenant advised that after she vacated the dwelling immediately after the
fire, she stayed in a hotel for 11 nights, at a total cost to her of €980. She said that she
did not have these funds immediately available to her, and was forced to use a friend`s
credit card to pay for this. After a period of 11 days, she said that she secured temporary
accommodation in a single room in Bray, for a period of 6 months. The Respondent
Tenant advised that this room was not big enough to accommodate all of her belongings
that she had left behind in the dwelling, and she had nowhere to put them. She advised
that she explained her position to the Landlord’s agent on several occasions, and she
requested that her belongings be left in the dwelling, where the Landlord had left his own
belongings. However, her request in this regard was refused. The Respondent Tenant
advised that on the 21st January, 2016 she was notified that her belongings would be put
in a skip if they were not removed. The Respondent Tenant advised that she attended at
the dwelling, and tried to remove what she could, in limited light. She stated the she
engaged the services of a removals company, to remove and store 10 boxes of her
possessions, 2 freezers, and 3 suit cases, and she produced a receipt in this regard.
When questioned by the Tribunal as to why this receipt had only been produced on the
day of the hearing, the Respondent Tenant advised that she had mis-placed it prior to
this, and had to get a new receipt from the removal company.
The Respondent Tenant advised that she recovered all of her possessions, except for
some cutlery and delph that had been damaged, and her desk, which she bought in 2014
at a cost of €50.
The Respondent Tenant advised that she moved into the dwelling in 2012, and she
regarded it as her home. She advised that it was never her intention to terminate the
tenancy, and at all times was of the view that if the dwelling was going to be re-let, she
was going to be able to move back in. She stated that on the 7th January, 2016, she
received a call from Mr Dixon (the letting agent), and was told by him that it was unlikely
that the Landlord was going to re-let the house, and that she should take her deposit
back. However, the Respondent Tenant stated that she thought that if it did come up for
rent again, she would be able to move back in. The Respondent Tenant advised that in
April, 2016 she discovered that the dwelling had gone back up for rent, and it had never
been offered back to her She has submitted that she should have been provided with the
opportunity to move back in to the apartment.
The Respondent Tenant advised that she has been significantly discommoded and has
suffered significant distress as a result of the circumstances that have unfolded since the
fire in the dwelling on the 30th October, 2015. She has advised that her temporary
arrangement to stay in a single room expired in May, 2016, and she was thereafter left
without a home. She stated that she was able to stay with a friend, and her family, at a
house in Tallaght for a period of approximately one month, before she secured
permanent accommodation in Bray.
The Respondent Tenant advised that she was out of the country in July, 2016. She stated
that this trip was paid for by her boyfriend, as she did not have the funds available to her.
6. Matters Agreed Between the Parties
The parties were in agreement that the address of the dwelling was 3 Glenhilton, Herbert
Road, Bray, Co. Wicklow. The tenancy commenced on the 1st October, 2012. The rent
was €900 per month. A deposit of €900 was paid. There was a fire in the dwelling on the
30th October, 2015, causing significant damage, and as a result of which the Respondent
Tenant vacated the dwelling. At the time, the rent payable was €900, paid up to the 31st
October, 2015. The parties were in agreement that the Respondent Tenant’s deposit was
returned on the 7th January, 2016, although the circumstances surrounding the return of
the deposit were disputed.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
hereunder.
7.1 Finding: The Tribunal has refused to consider the additional documentation supplied
to it by both parties at the commencement of the Tribunal Hearing on the 24th August,
2016.
Reason: The content of the said documentation is overly prejudicial, and produced too
late, so as to leave the opposing hopelessly disadvantaged and unable to adequately
reply.
7.2 Finding: The Respondent Tenant’s tenancy at all times remained in being, and once
the property was refurbished, the Landlord should have offered the Respondent Tenant
the opportunity to move back in at the existing rent.
Reasons: The Respondent Tenant’s tenancy commenced on the 1st October, 2012, and
it was in place at the time of the fire on the 30th October, 2015. Therefore, the
Respondent Tenant had a Part 4 tenancy in place, pursuant to section 28 of the 2004 Act.
Section 33 of the 2004 Act provides that a Part 4 tenancy may not be terminated by the
Landlord, save in accordance with section 34 of the Act, and Part 5 of the Act. No
evidence has been provided to the Tribunal that the tenancy was terminated in any
manner as specified in section 34. Similarly, no evidence has been provided to the
Tribunal to suggest that the Respondent Tenant terminated the tenancy, or acted so as to
deem the tenancy to have been terminated, pursuant to sections 36 and 37 of the 2004
Act.
The Tribunal accepts that Respondent Tenant’s evidence that she was at all times of the
understanding and belief that she would be able to move back in once the property was
refurbished and available, and that it was at all times her desire to do so. In this regard,
the Tribunal accepts the Respondent Tenant’s evidence that she only chose to accept the
return of the deposit on the basis that she was told that, in all likelihood, the premises was
not going to be available for rent at any point in the future. Indeed, Mr Dixon was not
made available to counter the Respondent Tenant’s evidence in this regard. However, in
any event, the acceptance of the return of the deposit did not amount to a termination of
the existing tenancy pursuant to the 2004 Act.
7.3 Finding: The Respondent Tenant was significantly discommoded, and suffered
significant distress, inconvenience and expense, as a result of the fact that she was
forced to vacate the dwelling in October, 2016, and was not thereafter offered the chance
to move back into the dwelling in April, 2016. The Tribunal is satisfied that the
Respondent Tenant is entitled to damages in the sum of €2,500 in this regard.
Reasons: The Tribunal accepts that Respondent Tenant’s evidence that she had lived in
the dwelling for a period of 3 years, and had come to regard it as her home. She was
forced to move into temporary hotel accommodation in November, 2014, then a single
room for 6 months, while awaiting the apartment to be renovated. Shortly after becoming
aware that the apartment was up for rent at a much increased price, and had not in fact
been offered to her, she was forced to move in with a friend and her family, in Tallaght,
approximately 20km from Bray, her usual place of residence. She has since secured
permanent accommodation in Bray, in July, 2016.
7.4 Finding. The Landlord should pay to the Respondent Tenant the sum of €224.34,
arising out of a breach of the Landlord’s obligation to provide a habitable dwelling and
keep same in good repair, pursuant to section 12(1) (b) of the 2004 Act.
Reasons: While the Tribunal remains unclear as to precise cause of the fire on the 30th
October, 2015, the Tribunal is satisfied that there was a breach of the Landlord’s
obligation to provide a peaceful and habitable dwelling and keep same in good repair,
pursuant to section 12 of the 2004 Act. In this regard, the Tribunal is unconvinced the
Respondent Tenant was in any way responsible for the cause of the fire, and is satisfied
that she should therefore be compensated in full for the emergency accommodation costs
incurred by her in November, 2015, in the sum of €980. The Landlord has already paid
the sum of €755.66, leaving a balance of €224.34. While the sum of €755.66 represented
the sum recovered from the Landlord’s insurer, that is a matter between those parties,
and is not something that the Respondent Tenant was privy too. The Tribunal does not
accept that in the circumstances in which the Respondent Tenant was forced to seek
alternative, emergency, accommodation, it is just or equitable that a deduction should be
made from the expense incurred. However, the Tribunal does not consider it just or
equitable to direct that the rent for the final day of October, 2015, be returned to the
Respondent Tenant, given that the alternative accommodation is now being covered in
full.
7.5 Finding: The Tribunal does not accept that the Respondent Tenant was in any way
responsible for a delay in the commencement or progression of the refurbishment works,
so as to justify the Landlord’s claim for the sum of €900.
Reasons: The Respondent Tenant’s tenancy remained in being at all times, and she was
in no way at fault for the fact that she had to vacate the dwelling. It was therefore
unreasonable to expect that she should be forced, at her own cost and expense, to move
her belongings, and find an alternative space for them, particularly in circumstances
where her accepted evidence is that she was living in a single room for the vast majority
of the time that she was out of the dwelling.
7.6 Finding: The Landlord, through his agent(s) or otherwise, caused the Respondent
Tenant’s desk, together with some cutlery and delph to be destroyed and/or damaged,
while her tenancy remained in being, and while she had vacated the dwelling. The
Tribunal is satisfied that the Respondent Tenant is entitled damages in the sum of €50 in
this regard.
Reason: The Respondent Tenant’s tenancy remained in being at all times, meaning that
the Landlord’s obligations, together with all duties owed to her, in so far as were
reasonable, continued in being also. As set out above, it was unreasonable to expect that
the Respondent Tenant was obliged, at her own cost and expense, to move her
belongings, and find an alternative space for them. The Landlord should have taken
greater care to ensure the safety of the said belongings, irrespective of the necessity to
carry out refurbishment works.
7.7. Finding: The Landlord’s is not entitled to recover the sum of €1.250 plus VAT in
respect of his agent’s fees.
Reason: The Tribunal does not consider that there is any obligation on the part of the
Respondent Tenant, in law or in fact, to pay this sum, or any sum, to the Landlord in
respect of the fees incurred by his agent in the course of this dispute.
8. Determination:
Tribunal Reference TR0516-001786
In the matter of Jack O’ Driscoll (Landlord) and Yvonne Murphy (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlord shall pay the total sum of €2,774.34 to the Respondent
Tenant, being damages of €2,500 for failure to offer the dwelling to her for
accommodation purposes on completion of the refurbishment works in April, 2016,
together with the sum of €274.34 arising out of a breach of the Landlord’s obligations
pursuant to section 12(1(b) of the 2004, within 21 days of the issue of this Order in
respect of the tenancy of the dwelling at 3 Glenhilton, Herbert Road, Bray, Co.
Wicklow.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
06 September 2016.
Signed:
Brian Regan Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1116-002055 / Case Ref No: 0816-28432
Appellant Tenant: Grace Orungbeja, Taiwo Ogun
Respondent Landlord: Otuyemi Otule, Olusola Mustapha- Otule
Address of Rented Dwelling: 39 Mount Bellew Crescent, Lucan , Co Dublin,
K78XN47
Tribunal: Owen Donnelly (Chairperson)
Nesta Kelly, James Egan
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 07 December 2016 at 2:30
Attendees: Olusola Mustapha- Otule (Respondent Landlord)
In Attendance: RTB appointed Recording Technician, DTI
Wordwave
1. Background:
On 18 August 2016 the Tenants made an application to the Residential Tenancies Board
(the “RTB”) pursuant to Section 78 of the Act. The matter was referred to an adjudication
which took place on 10 October 2016. The Adjudicator determined as follows:
“1. The Notice of Termination served on the 3rd September 2016 by the
Respondent/Applicant Landlords on the Applicant/Respondent Tenants, in respect of
the tenancy at the dwelling at 39 Mount Bellow Crescent, Lucan, Dublin, is valid.
2. The Applicant/Respondent Tenants and any persons residing in the above
dwelling shall vacate and give up possession of the above dwelling within 21 days of
the issue of the Determination Order.
3. The Applicant/Respondent Tenants shall pay the sum of €1,208.00 to the
Respondent/Applicant Landlords, in 6 consecutive monthly payments of €180, on the
28th day of each month, followed by one payment of €128 in the immediately
succeeding month, commencing the next month after the issue of the Determination
Order, being rent arrears in the sum of €1988.80 less €500 damages for breach of
Landlord Obligations under s12(1)(b) of the Residential Tenancies Act 2004 and
€280 in respect of fixing the boiler, in respect of the tenancy of the above dwelling.
4. The Enforcement of the Order for such payment shall be deferred and the total
sum owing reduced by the cumulative sum paid in the monthly instalment of €180
made by the Applicant/Respondent Tenants to the Respondent/Applicant Landlords
on each due date until the sum of €1,208.00 has been paid in full.
5. For the avoidance of doubt any default in the payment of the monthly instalments
of €180 shall act to cancel any further deferral and the balance due at the date of
default of any such monthly payment shall immediately become due and owing to the
Respondent/Applicant Landlords.
6. The Applicant/Respondent Tenants shall pay ant rent outstanding from the 10th
October 2016, at a rate of €1,100.00 per month and/or €36.16 per day, unless
lawfully varied, and any other charges as set out in the terms of the tenancy
agreement for each month/day or part thereof, until such time as they vacate the
above dwelling.
7. The Respondent/Applicant Landlords shall refund the entire of the security deposit
of €1,100 to the Applicant/Respondent Tenants, on gaining vacant possession of the
above dwelling, less any amounts properly withheld in accordance with the
provisions of the Act.”
The Tenants submitted an Appeal Application Form on the 9th October 2016 and the
Board approved the referral of the Tenants appeal to a Tenancy Tribunal pursuant to
section 96(2) of the Act. In accordance with Sections 102 and 103 of the Act, the RTB
constituted such a Tenancy Tribunal and appointed Owen Donnelly, Nesta Kelly and
James Egan as Tribunal members. The Board appointed Owen Donnelly as the
Chairperson of the Tribunal (the “Chairperson”). The parties were notified of the
constitution of the Tribunal; were provided with details of the date, time and venue set for
the hearing; and were provided with a copy of the Tribunal Hearing Procedures.
On the 6th December 2016 at 17:44 pm an e-mail was received from Grace Orungbeja,
one of the Appellant Tenants, indicating that she was unable to attend the hearing. A
photograph of a medical certificate and a prescription form for Augmentin and Solpadeine
was attached to same.
In response, by e-mail sent at 18:08 pm, the Tribunal Section enquired if the other
Appellant Tenant, Taiwo Ogun, would be attending to represent both Appellant Tenants
at hearing and, although the Appellant Tenant did not expressly seek an adjournment,
reminded the Appellant Tenant that adjournments are only granted in exceptional
circumstance.
In reply, by e-mail send at 19.21 pm, Grace Orungbeja confirmed that Taiwo Ogun had
relocated to the United Kingdom and no longer resided at the Dwelling. A copy boarding
pass bearing Taiwo Ogun’s name was attached to this e-mail.
The medical certificate provided by, and relating to, Grace Orungbeja is issued by a Dr.
Ajaz Ahmed of Primacare and purports to certify that the Appellant Tenant “is fit/unfit to
attend work/school/college/jury duty”. None of the applicable options have been selected
and/or deleted, as appropriate. The certificate is valid from the 7 December 2016 to the 8
December 2016. The reason stated in the certificate, for the non-attendance, does not
amount to an exceptional circumstance and does not warrant an adjournment of the
appeal hearing.
On 7th December 2016 the Tribunal convened a hearing at 2:30 pm at the offices of the
RTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2. The Respondent
Landlord was present. Having regard to the correspondence received from the Appellant
Tenant, and the attachments thereto, the Tribunal did not consider same to amount to an
exceptional circumstance that would permit the hearing to be adjourned.
The Appellant Tenants appeal was deemed to have been abandoned. The Respondent
Landlord was informed that the Adjudicator’s determination stands.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Respondent Landlord was asked to confirm her name and that she was the landlord
of the Dwelling. It was explained to the Respondent Landlord that correspondence had
been received from one of the Appellant Tenants the previous afternoon indicating that
they were not in a position to attend the appeal hearing. It was explained that, in
accordance with the Tribunal Hearing Procedures, the Tribunal did not consider there to
be an exceptional circumstances that would warrant adjourning the appeal hearing. The
Respondent Landlord was informed that the Appellant Tenants appeal was deemed to
have been abandoned and that the Adjudicator’s determination stands.
5. Submissions of the Parties:
Not applicable. Appeal deemed abandoned at outset.
6. Matters Agreed Between the Parties
Not applicable. Appeal deemed abandoned at outset.
7. Findings and Reasons:
Finding:
The Tribunal deems the Appellant Tenants appeal to have been abandoned. The
Adjudicator’s determination stands.
Reasons:
Grace Orungbeja’s reason for not attending the hearing of her appeal is not considered to
amount to an exceptional circumstance that would warrant an adjournment of the appeal
hearing.
While Taiwo Ogun no longer resides at the Dwelling, it was open to both Appellant
Tenants to attend their appeal hearing and exceptional circumstances have not been
shown that would justify an adjournment of the appeal hearing.
8. Determination:
Tribunal Reference TR1116-002055
In the matter of Grace Orungbeja, Taiwo Ogun (Tenant) and Otuyemi Otule, Olusola
Mustapha- Otule (Landlord) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
The Tribunal deems the Appellant Tenants appeal to have been abandoned. The
Adjudicator’s determination stands.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
12 December 2016.
Signed:
Owen Donnelly Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0116-001541 / Case Ref No: 1115-22081
Appellant Tenant: Angelica Radionova
Respondent Landlord: Derek Lynch, Tracey Lynch
Address of Rented Dwelling: 4 Silverbrook, Trim Road, Navan , Meath, C15F8P4
Tribunal: Siobhan Phelan (Chairperson)
John Keaney, Rosemary Healy Rae
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 21 March 2016 at 10:30
Attendees: Derek Lynch (Respondent Landlord)
Jurijus Kitovas (Appellant Tenant’s Representative)
In Attendance: DTI Stenographer/Logger
RTB appointed Interpreter
1. Background:
On 02 November 2015 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 02 December 2015. The Adjudicator determined that:
The termination of the Tenant’s tenancy by the Respondent Landlords on 27th or
28th December 2015 was an unlawful termination of the tenancy of the dwelling at 4
Silverbrook, Trim Road, Navan, Co. Meath.
Subsequently an appeal was received from the Appellant Tenant on 04 January 2016.
The grounds of the appeal were Breach of landlord obligations, Standard and
maintenance of dwelling and Unlawful termination of tenancy (Illegal eviction). The appeal
was aproved on 11 January 2016.
The RTB constituted a Tenancy Tribunal and appointed John Keaney, Siobhan Phelan
and Rosemary Healy Rae as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Siobhan Phelan to be the chairperson of the Tribunal (“the
Chairperson”).
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
The Appellant Tenant’s son submitted a written submission on behalf of his mother, the
Appellant Tenant, without objection from the Respondent Landlord. This document was
entitled “Statement of Angelica Radionova addressed to the RTB Committee setting for
hearing 21/3/2016” and was addressed principally to matters of legal submission.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the representative of the person who appealed (the Appellant Tenant) would be invited to
present his case first; that there would be an opportunity for cross-examination by the
Respondent Landlord; that the Respondent Landlord would then be invited to present his
case, and that there would be an opportunity for cross-examination by the Appellant
Tenant’s representative. The Chairperson explained that following this, both parties would
be given an opportunity to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the parties that as a result of the hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only.
The Chairperson noted that should the parties indicate that they would be able to resolve
the dispute through negotiation, the Tribunal would facilitate any such settlement.
Although a Russian interpreter was available to assist the Tribunal, the Appellant
Tenant’s Representative confirmed that her presence was not required.
The Chairperson proceeded to have the parties giving evidence sworn in.
5. Submissions of the Parties:
Appellant Tenant’s Submissions
The Appellant Tenant did not attend at the hearing but was represented by her son. The
Appellant Tenant’s representative read out the document entitled “Statement of Angelica
Radionova addressed to the RTB Committee setting for hearing 21 March 2016” and
circulated copies of same to the Tribunal without objection from the Respondent
Landlord. This was an unsigned, unsworn document.
In this document the Appellant Tenant referred the Tribunal, inter alia, to provisions of the
Constitution identified as relevant (Articles 41, 40.3, 40.1 and 38.1) and to international
instruments to which the State is a party. It was asserted that “eviction made in public is
a degrading treatment or punishment” and that “arraignment, several times, District Court,
Navan, is a degrading treatment or punishment”. Reference was made to the duty of
care of the Landlords and the resulting liability for breach of that duty of care. A
complaint was made that the Respondent Landlords had failed to insure their business of
renting houses and had failed to register the dwelling with the RTB. It was separately
complained that the Adjudicator had failed to award the travel costs of attendance at the
Adjudication. It was contended that there ought to be an award of damages to include
“foreseeable damage”.
In her written statement the Appellant Tenant also requested an “injunction on the names:
her name and family members especially the child, in accordance with the “In Camera”
rule used by the Family Courts.
The Appellant Tenant’s representative had not been living with the Appellant Tenant
when the tenancy was terminated and either did not choose to or was not in a position to
lead evidence in relation to the heads of complaint touched on by the Appellant Tenant in
the written documentation submitted to the Tribunal in advance of the hearing and in her
written statement. In response to questions from the Tribunal, he confirmed that his
mother had lived at the dwelling with his brother (then aged approximately seventeen
years) and his sister, then aged four years and was evicted from the dwelling at the end
of December, 2013. All he could tell the Tribunal about the alleged eviction was that the
Respondent Landlord called to the dwelling and asked the Appellant Tenant to leave and
that she did leave.
The Appellant Tenant’s representative told the Tribunal that following her departure from
the dwelling she lived with her estranged husband for a couple of weeks before moving to
Bed and Breakfast accommodation for four weeks and a refuge centre for two to three
weeks, followed by some months in emergency accommodation before securing
alternative accommodation. He referred to the psychological effect of living in four
locations in the space of several months referring to it as “hard living” but did not
elaborate and stated that he did not have anything else to add.
Although invited to present evidence to the Tribunal in respect of each of the Appellant
Tenant’s complaints as identified in the documents before the Tribunal, the Appellant
Tenant’s representative was not in a position to adduce any evidence and repeated
sequentially in respect of each complaint identified and put to him that he had “nothing to
add”. Thus in response to each of the complaints as follows, he repeated that he had
nothing to add:
1. Complaint of breach of the Respondent Landlords’ duty of care (obligations)
2. Complaint of unlawful termination of the tenancy of the dwelling at 4 Silverbrook, Trim
Road, Navan, Co. Meath
3. Complaint of rent more than market rate.
4. Complaint of the Respondent Landlords unjustifiably retaining the deposit.
5. Other complaints:
(a) Failure to insure property
(b) Victimising the Appellant Tenant’s family
(c) Exposing the Appellant Tenant’s autistic child to bodily harm
(d) Exposing the Appellant Tenant’s family to bodily harm
(e) Ignoring the Appellant Tenant’s right for a peaceful and quiet life
(f) Incriminating the Appellant Tenant and segregating the family.
(g) Minority racism and bluffing.
It was explained to the Appellant Tenant’s representative that while legal submissions
had been advanced, the Tribunal required an evidential basis before it could make
findings. The Appellant Tenant’s representative indicated that he understood this but
repeated that he had nothing further to say and that he could not tell the Tribunal why the
complaints were made. He confirmed that he was not calling any further evidence.
Respondent Landlord’s Submissions
The Respondent Landlord explained to the Tribunal that he was surprised to find himself
before the Adjudicator in the first instance and now before the Tribunal. He said that on
this occasion he is being faced with a claim for damages in the sum of €1 million euros.
He pointed out that not one piece of evidence had been given to substantiate the various
complaints or the claim for damages advanced by and on behalf of the Appellant Tenant
in the documentation submitted to the Tribunal and contained on the case-file. He
referred the Tribunal to his email dated the 19th of November, 2015 contained on the
Tribunal Case-file in which he had set out the history to the termination of the tenancy.
He explained that there had been a history of rent arrears which he had treated flexibly.
He described occasions when the Appellant Tenant sought his assistance and his various
attempts to resolve her difficulties including occasions when he filled the coal bunker
because she could not afford to heat the dwelling. This notwithstanding, by December,
2013 arrears of rent stood at €2,490.00 and he wrote a warning letter requesting that
arrears of rent be discharged within a period of 14 days. This letter was not before the
Tribunal nor was the existence of the letter contested by the Appellant Tenant’s
representative.
The Respondent Landlord said that when he attended at the dwelling at the end of
December, 2013 to follow up in respect of arrears of rent which remained undischarged,
he found that almost all of his furniture (from TVs to kitchen utensils), including fittings
such as the kitchen island, had been removed from the house. Electric sockets had been
removed and wires lay exposed. The Tenant explained to the Landlord that she had
given the furniture away because of “spirits” in the house. Even the kitchen unit had been
removed, although this would have required to be dismantled to get it out of the house.
The Respondent Landlord told the Tribunal that when he realised that his furniture and
fittings had been removed and when he saw the damage to the dwelling, he asked the
Appellant Tenant to leave and he called the Gardai. He told the Tribunal that the
Appellant Tenant was collected from the dwelling the same day by her estranged
husband. Subsequently, a prosecution for criminal damage was maintained before the
Courts ultimately resulting in a plea of guilty, a letter of apology from the Tenant and the
imposition of a suspended sentence. The Appellant Tenant’s representative
acknowledged that the letter of apology in the Respondent Landlord’s possession was in
his mother’s hand writing before agreeing to the Respondent Landlord reading extracts
from the letter. The contents of the letter which was dated the 11th June 2014 made
clear that the Appellant Tenant accepted removing items from the house due to spirits in
the house so that the house could become a “neutral place”. She stated that she did not
wish to hurt anybody but that her actions were necessary because of where the house
was built. In this letter she described the Respondent Landlords as “wonderful people”
and thanked them for everything.
The Respondent Landlord explained that the actual “eviction” had nothing to do with the
rent arrears but was prompted by the fact that so many items had been stolen from the
dwelling and the extent of the damage to the dwelling. He said that he was fearful that it
was only a matter of time before the few remaining larger items would also be removed
from the dwelling. He accepted that he had not given notice of termination as required
under the 2004 Act but contended that the appropriate period of notice was seven days in
light of the circumstances prevailing.
In response to queries from the Tribunal the Respondent Landlord confirmed that he had
never recovered the arrears or rent and had not received compensation in respect of
damage to the dwelling. He had not brought a claim in respect of the damage to the
dwelling as against the Tenant, which he claimed exceeded €12,000, because he did not
consider that there was any point in doing so. Although the Respondent Landlord
explained that he had receipts for various replacement items with him, he accepted that
these had not been submitted in advance of the hearing and the Appellant Tenant was
therefore not on notice of same. The Respondent Landlord confirmed that he would wish
to reserve his right to pursue these matters in a separate complaint in light of the trouble
to which he had been put by the manner in which the Appellant Tenant had pursued this
matter and accordingly confirmed that he was not asking the Tribunal to deal with these
issues as part of the dispute before the Tribunal.
The Respondent Landlord sought to address each head of complaint advanced but
explained that he couldn’t really do so because he did not know what the complaints
meant. In relation to the complaint that rent in excess of the market rate was claimed, he
said that he did not understand the basis on which this complaint was made and it was
untrue. In any event he said that the rent was fixed by agreement.
In relation to the complaint of a failure to insure the dwelling he said that the dwelling had
always been insured but he did not understand why a complaint was being made about
this in any event because there had never been a claim made by the Tenant and whether
the dwelling was insured or not should be of no consequence to the Tenant absent a
claim by her for compensation being dishonoured.
He explained that he was unable to address assertions that he was in breach of duty of
care without knowing on what basis this assertion was being made. Insofar as it is
alleged that he exposed the family to harm or injury, he explained that he needed some
information about what he was supposed to have done before he could address it. He
told the Tribunal that insofar as the maintenance of the dwelling was concerned and his
duty as a landlord in this regard, he believed that he had done everything that could have
been expected of him and more pointing to the number of occasions he attended to fix
window locks broken by the children, an occasion when he attended to replace a battery
in a doorbell and a time when he attended in respect of a complaint about the heating
only to discover that the thermostat had just been turned down.
In relation to the allegation of failure to register with the RTB, he explained that he had
attended to registration late. He could not furnish the exact date but thought it was
sometime in 2012 or 2013.
The Respondent Landlord did not seek to cross-examine the Appellant Tenant’s
representative and the Appellant Tenant’s representative in turn said he had no questions
for the Respondent Landlord and did not wish to say anything in response.
6. Matters Agreed Between the Parties
Those matters that were agreed in advance of hearing the evidence were as follows:
1. The tenancy address was 4 Silverbrook, Trim Road, Navan, Co. Meath;
2. The tenancy commenced on the 22nd May 2010;
3. The deposit paid was €830 and this had been retained by the Respondent Landlords;
4. Rent payable was €830.00 per month;
5. The tenancy was terminated on or about the 27th or 28th of December, 2013.
6. No Notice of Termination had been served but the Respondent Landlords had written a
warning letter in December, 2013 in respect of arrears of rent.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence
presented to it by the parties the Tribunal’s findings and reasons therefore are set out
hereunder.
Finding 1: The Appellant Tenant’s complaint of breach of the Respondent Landlords’ duty
of care (obligations) is not upheld.
Reasons
It is not enough to assert a breach of an obligation without providing an evidential basis
for the asserted breach. The Landlord’s statutory obligations relating to the structure and
interior of a dwelling are set out in section 12 of the 2004 Act. No evidence was given of
requests for repair or response to same. The Appellant Tenant provided insufficient
evidence to support her claim of a breach of obligations by the Respondent Landlords.
Finding 2: The Appellant Tenant’s complaint of unlawful termination of the tenancy of the
dwelling at 4 Silverbrook, Trim Road, Navan, Co. Meath is upheld.
Reasons
The Respondent Landlord did not contest the fact that he had failed to serve a Notice of
Termination in accordance with the provisions of the 2004 Act with the result that the
procedural safeguards prescribed under the Act were not observed and the Appellant
Tenant did not receive notice in accordance with the requirements of the 2004 Act
resulting in an unlawful termination of tenancy.
Finding 3: The Appellant Tenant’s claim for damages for unlawful termination of tenancy
is not upheld.
Reasons
The Tribunal consider, having regard to evidence given as to the condition of the
dwelling, which included exposed electrical sockets, that the appropriate period of notice
under the 2004 Act in the circumstances of this case was seven days. The Tribunal is
satisfied on the weight and balance of the evidence that the Appellant Tenant brought
about the abrupt termination of her tenancy by engaging in criminal acts, as found by a
Court of competent jurisdiction on a plea of guilty, concerning the dwelling. Nonetheless,
the procedural safeguards prescribed under the Act and the requirement to give notice
apply irrespective of the conduct of the tenant and so the Tribunal must consider the
consequences, if any, for the Appellant Tenant of failure to comply with obligations as
regards the formalities pertaining to a lawful termination of a tenancy and the duty to give
notice on the part of the Respondent Landlords.
While some evidence was given that the Appellant Tenant was required to move between
temporary accommodation on as many as four separate occasions following the
termination of the tenancy until she secured appropriate longer term accommodation, it is
not clear what damage, if any, flowed from this. Reference was made to the risk of
psychological harm as a result of same but no actual evidence of expense associated
with finding alternative accommodation and no evidence of actual resulting harm or loss
was adduced before the Tribunal.
The Appellant Tenant sought to draw the Tribunal’s attention to relevant provisions of the
Constitution and of international instruments binding on the State. The Tribunal is, of
course, mindful of its obligation to exercise its statutory powers, to the extent possible and
in accordance with the limits on its jurisdiction as a creature of statute, in a manner
consistent with the Constitution and other domestically transposed provisions. That said,
the Tribunal cannot make findings of breaches of the Act which sound in damages in an
evidential vacuum.
Accordingly, on the basis of the evidence before the Tribunal, we do not consider it
appropriate to make an award in damages in this case. We consider that on the facts of
this case and in the face of an evidential deficit, that the Appellant Tenant’s rights secured
under the Act arising from an unlawful termination of her tenancy are vindicated by the
finding that the termination of her tenancy was unlawful. No basis has been
demonstrated for a further award in damages.
Finding 4. The Appellant Tenant’s complaint of rent more than market rate is not upheld.
Reasons
It is not enough to assert a breach of an obligation without providing an evidential basis
for the asserted breach. Irrespective of the question of the Tribunal’s jurisdiction to deal
with this complaint where a rent has been freely agreed, has not been varied and where
no dispute was referred during the currency of the tenancy in respect of rent, it remains
the case that the Appellant Tenant provided no evidence to support her complaint of rent
more than market rate in this case.
Finding 5. The Appellant Tenant’s complaint of the Respondent Landlords unjustifiably
retaining the deposit is not upheld.
Reasons
The Appellant Tenant provided insufficient evidence to support her claim that the
Respondent Landlords unjustifiably retained her deposit. Under section 12(4)(a) of the
2004 Act, no amount of deposit can be required to be repaid if, at the date of the request,
there is default in payment of rent and the amount of rent arrears is greater than the
amount of the deposit or costs (over and above costs associated with normal wear and
tear) of restoring the dwelling to its condition at the commencement of the tenancy. The
claim made that extensive damage had been caused to the dwelling was not denied on
behalf of the Appellant Tenant. Nor was it denied that there were arrears of rent in the
order outlined by the Respondent Landlord which far exceeded the amount of the security
deposit. The uncontested evidence before the Tribunal is that the Appellant Tenant had
pleaded guilty in respect of a criminal prosecution arising from her treatment of the
Respondent Landlord’s dwelling. In the circumstances, the Appellant Tenant has failed to
establish an entitlement to repayment of the security deposit paid.
Finding 6. The Appellant Tenant’s other complaints, namely: (a) Failure to insure property
(b) Victimising the Applicant Tenant’s family (c) Exposing the Applicant Tenant’s autistic
child to bodily harm (d) Exposing the Applicant Tenant’s family to bodily harm (e) Ignoring
the Applicant Tenant’s right for a peaceful and quiet life (f) Incriminating the Applicant
Tenant and segregating the family (g) Minority racism and bluffing are not upheld save
that it is found that the Respondent Landlords initially did not register the Appellant
Tenant’s tenancy with the RTB.
Reasons
It is not enough to assert a breach of an obligation without providing an evidential basis
for the asserted breach. With the exception of the late registration with the RTB, the
Appellant Tenant provided insufficient evidence to ground any of her other complaints.
Had there been evidence to ground these other complaints (which there was not), the
Tribunal would have needed to consider on what basis it was claimed that each separate
complaint constituted a breach of the 2004 Act and separately what the appropriate
redress might be but in the absence of an evidential basis, this question of jurisdiction
and whether a remedy is provided for under the 2004 Act in respect of each complaint
does not arise.
Although there is evidence that the Respondent Landlord did not register the tenancy with
the RTB in a timely manner, the delay in registration did not result in any prejudice or
damage to the Appellant Tenant who did not pursue a complaint until 2015, by which time
the tenancy had been registered and there was no impediment to the Appellant Tenant
having her complaint heard and determined by the RTB. No evidence of any other
prejudice or damage was adduced.
Finding 7: The Appellant Tenant’s claim for costs of attendance is not upheld.
Reasons
The Appellant Tenant did not choose to offer evidence to the Adjudicator despite request,
thereby failing to co-operate fully with the Adjudicator. Further, the Appellant Tenant did
not attend the appeal hearing and therefore the travel costs indicated did not arise. Her
representative before the Tribunal was not in a position to offer new evidence to assist
the Tribunal in its deliberations. While the Tribunal has a power to order the payment of
expenses under section 78(1)(f) of the 2004 Act, it is unusual for the Tribunal to direct
one side to pay the other’s expenses of dealing with a complaint to the RTB and we do
not consider the circumstances of this case warrant the exercise this power.
Finding 8. The Tribunal does not recommend an order that the identities of all or one or
more of the parties should not be disclosed.
Reasons:
Section 106(1) of the 2004 Act provides that proceedings before the Tribunal shall be
conducted in public. Subsection (2) provides that, in the particular circumstances of a
case, if the Board considers it appropriate to do so, it may make an order directing that
the identities of all or one or more of the parties to a dispute over which the Tribunal has
jurisdiction shall not be disclosed. In the particular circumstances of this case, where no
evidence was adduced before the Tribunal to warrant the making of such an order, the
Tribunal does not consider it appropriate to recommend that the names of any of the
parties should not be disclosed.
8. Determination:
Tribunal Reference TR0116-001541
In the matter of Angelica Radionova (Tenant) and Derek Lynch, Tracey Lynch
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The termination of the Appellant Tenant’s tenancy by the Respondent Landlord on
27th or 28th December 2013 was an unlawful termination of the tenancy of the
dwelling at 4 Silverbrooke, TrimRoad, Navan, Co. Meath.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
20 April 2016.
Signed:
Siobhan Phelan Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0516-001780 / Case Ref No: 0316-25147
Appellant Tenant: Crina Tudor
Respondent Landlord: Michelle Kehoe
Address of Rented Dwelling: 24 Asgard Avenue, Grange Manor , Waterford,
X91VH2V
Tribunal: John Keane (Chairperson)
Ciara Doyle, Louise Moloney
Venue: Conference Room, Dept of Environment,
Community and Local Government, Newtown
Road, Wexford
Date & time of Hearing: 12 July 2016 at 2:30
Attendees: Crina Tudor (Appellant Tenant)
Alina Tanase (Appellant Tenant’s daughter)
Clare Quinlan (Respondent Landlord’s Solicitor)
Michelle Kehoe(Respondent Landlord)
John Ryan (landlord named in the Letting
Agreement)
In Attendance: Wordwave DTI
Alina Dobos (Word Perfect Translators)
1. Background:
On the 29 March 2016 Michelle Kehoe (called “the Landlord” or “Respondent Landlord” in
this report) made an application to the Residential Tenancies Board (“the RTB”) pursuant
to Section 76 of the Residential Tenancies Act 2004 as amended (called “the Act” in this
report”). The matter was referred to an Adjudication which took place on 6 May 2016. The
Adjudicator determined that:
1. The Notice of Termination served on the 18th August 2015 by the Applicant
Landlord on the Respondent Tenant, in respect of the tenancy of the dwelling at 24
Asgard Avenue, Grange Manor, Waterford, is valid.
2. The Respondent Tenant and any persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 14 days of the issue of
the Determination Order.
3. The Respondent Tenant shall pay the sum of €1616.96 to the Applicant Landlord,
in 10 consecutive monthly payments of €150, on the 28th day of each month,
followed by one payment of €116.96 in the immediately succeeding month,
commencing the next month after the issue of the Determination Order, being rent
arrears in respect of the tenancy of the dwelling at 24 Asgard Avenue, Grange
Manor, Waterford.
4. The enforcement of the Order for such payment shall be deferred and the total
sum owing reduced by the cumulative sum paid in the monthly instalments of €150
made by the Respondent Tenant to the Applicant Landlord on each due date until the
sum of €1616.96 has been paid in full;
5. For the avoidance of doubt any default in the payment of the monthly instalments
of €150 shall act to cancel any further deferral and the balance due at the date of
default of any such monthly payment shall immediately become due and owing to the
Applicant Landlord.
6. The Respondent Tenant shall pay any rent outstanding from the 6th May 2016, at
the rate of €600 per month and/or €19.73 per day, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month/day
or part thereof, until such time as she vacates the above dwelling.
Subsequently the following appeal was received on the 20 May 2016, from Crina Tudor
(called “the Tenant” or “Appellant Tenant” in this report).The grounds of the appeal
related to rent arrears and overholding. The Appeal was approved by the Board on the 24
May 2016.
The RTB constituted a Tenancy Tribunal and appointed John Keane, Louise Moloney,
Ciara Doyle as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed John Keane to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 12 July 2016 the Tribunal convened a hearing at Conference Room, Dept of
Environment, Community and Local Government, Newtown Road, Wexford.
The parties confirmed that the tenancy commenced on the 5 February 2014 and has not
ended. The parties also confirmed that the rent was €600 per month. A Letting
Agreement dated the 4 February 2015 between Michelle Kehoe and John Ryan (referred
to as ‘the Landlords’ in this report) and Crina Tudor was signed by the parties.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
The Tenant submitted a rent book, document received by her from the Landlord recording
part payments of rent, a signed Notice of Termination and her copy of the Letting
Agreement. The Landlord’s Representative confirmed that the Landlord had no objection
to the submission of these documents. The Tenant also submitted a letter from the HSE
and a letter regarding Gas Meter works. The Landlord’s Representative objected to the
submission of these documents on the grounds that they were not relevant. The Tribunal
noted the objection but allowed the documents to be submitted for consideration. The
Tribunal noted the contents of the documents which were returned to the Appellant
Tenant without copies being retained.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson requested the parties to
confirm that they had received the relevant papers from the RTB in relation to the case.
The Tribunal also requested the parties to confirm that they had received the RTB
document entitled “Tribunal Procedures”. The Appellant Tenant was unable to confirm if
she received the document entitled “Tribunal Procedures” as she told the Tribunal that
she could not read or write. The Tribunal adjourned the hearing for a short period to allow
the translator to explain the contents of the document to the Appellant Tenant. The
Chairperson said that he would be happy to clarify any queries in relation to the
procedures either then or at any stage over the course of the Tribunal hearing.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present her case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and that based on that recording a
transcript could be made available to the Tribunal if necessary to assist it in preparing its
report on the dispute, or to the parties for a fee. He reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson said that members of the Tribunal would ask questions from time to time
to assist in clarifying the issues in dispute between the parties. The Chairperson
explained that should the parties indicate that they would be able to resolve the dispute
through negotiation, the Tribunal would facilitate any such settlement.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
During the course of her evidence, the Appellant Tenant informed the Tribunal that she
wanted to play a voice recording taken by her of a conversation between her and the
Respondent Landlord. She said the voice recording would support her evidence
regarding a payment of rent of €2,000 which she claimed to have made but which was
not recorded in the rental statement by the Respondent Landlord. She informed the
Tribunal that one of her daughters, who was not present at the Tribunal hearing assisted
her with translation when the recording was taken. The Tribunal noted the objection to the
admission of the voice recording by the Respondent Landlord’s Representative on the
grounds that the Appellant Tenant gave two different dates as to when the payment of
rent was made, there was no evidence as to its veracity, the Respondent Landlord did not
know when or where it was made and the daughter that the Appellant Tenant claimed
was acting as a translator was not present at the Tribunal hearing. The voice recording
was not allowed to be submitted by the Tribunal as all documentation which includes
voice recordings is required to be submitted 5 days in advance of the hearing other than
in exceptional circumstances as per rule 11 of the rules under Section 109 of the Act. The
Tribunal does not find there are exceptional circumstances to warrant the admission of
the voice recordings in this case. The requirement to submit documentation 5 days in
advance was notified to the parties in the document entitled ‘Tribunal Procedures’’ in
advance of the hearing. The Tribunal has a duty to apply fair procedures. The Tribunal
finds that the Respondent Landlord is entitled to be made aware of the Appellant Tenant’s
case in advance of the hearing. The Respondent Landlord was not given an opportunity
in advance of the hearing to vet the recording and be allowed to prepare her response.
Furthermore, the daughter of the Appellant Tenant who assisted as a translator when the
voice recording was taken was not present at the Tribunal. The Appellant Tenant
submitted that the voice recording proved a payment of €2,000. Even if the payment of
€2,000 was made (which the Tribunal does not accept based on the evidence of the
parties) in August 2015 or in 2016 being the two different dates given by the Appellant
Tenant as to when the payment was made, the Respondent Landlord would still be
entitled to terminate the tenancy as the payment would not have been made within 14
days from the service of the Notice of Rent Arrears dated the 10 July 2015. A landlord is
entitled to serve a Notice of Termination under section 67(3) if an amount of rent due has
not been paid within 14 days from the receipt of this Notice.
5. Submissions of the Parties:
The Appellant Tenant gave evidence that she moved into the dwelling on the 5 February
2014 and paid €1,300. She said she was subsequently refunded €100 as the rent was
reduced to €600 per month from €650 per month by agreement with the Respondent
Landlord. She explained that her contribution to the rent was €200 per month and the
balance was paid by Social Welfare. The Appellant Tenant agreed that the rent was €600
per month even though the rent book referred to a figure of €525. The Appellant Tenant
explained that she had some receipts from the bank for payments made by her when the
money was lodged to the Landlords’ account which she submitted to the Tribunal but
other cash payments were made to the Landlord and she was not given receipts for these
payments.
The Tribunal referred the Appellant Tenant to the rental statement submitted by the
Respondent Landlord and asked her to identify any payments she was claiming she
made which were not recorded in the rental statement. She said that a gas boiler was
broken in 2015 and she did not want to pay rent until it was fixed. However, she explained
that she subsequently decided to pay the arrears of rent in July 2015 before the gas
boiler was fixed in August 2015. She said she lodged €500 to the Landlords’ bank
account and gave the Respondent Landlord a cash payment of €700 in July 2015. She
said she made another payment of €700. The Tribunal referred her to a payment of €700
which was recorded in the rental statement on the 28 March 2014. She then told the
Tribunal that she also paid €400 in cash on the 28 March 2014.The Tribunal enquired as
to why she would make a cash payment and lodge money to the Landlord’s’ bank
account around the same time. She explained that her daughter lodged the money in the
Landlords’ bank account asshe did not know how to lodge the money and this was the
reason she made the cash payment. She claimed that she made a cash payment of
€2,000 in 2016 and subsequently changed her evidence and said that this amount was
paid in August 2015.The Tribunal enquired as to the reason she would pay €2,000 in
August 2015 when this was greater than the rent arrears in the rental statement at August
2015. She stated that she had paid the rent in advance. The Appellant Tenant stated that
she wished to submit a voice recording as evidence of payment of €2,000. The voice
recording was not allowed to be admitted by the Tribunal for the reasons set out in the
‘Procedure’ section above.
The Appellant Tenant explained that her elderly father who is unwell was living with her in
the dwelling. She said that Social Welfare required documentation concerning her father
in January 2016 and ceased paying the rent allowance.
She complained that the Landlords never repaired the cooker or a problem with the
electricity.
The Appellant Tenant stated that she did not receive the Notice of the 7 October 2014 but
she did receive phone calls and text messages and subsequently paid the rent. The
Appellant Tenant confirmed that she did receive the warning Notice dated the 10 July
2015 requiring her to pay rent within 14days and she also received the Notice of
Termination dated the 18 August 2015.
In the course of her evidence the Appellant Tenant suggested that as long as she paid
her contribution of €200.00 per month towards the rent for the dwelling she was meeting
her obligations, the balance of the monthly rent in the amount of €400.00 which was
payable through rent allowance she suggested was a matter between the Respondent
Landlord and SocialWelfare.
The Appellant Tenant submitted that it was unfair what the Landlord was doing. She said
there were complaints made against her by other parties to the Landlord which were
untrue.
In summation, the Appellant Tenant stated that she does not know if she can find another
dwelling and she needed time to find another dwelling. She stated that she lives in the
dwelling with her elderly father and her four children aged 18,14,13, &11. She said she
was exhausted taking care of her elderly father.
Respondent Landlord’s Case:
The Respondent Landlord confirmed that the dispute related solely to rent arrears and
over holding. She clarified that the dispute in relation to anti-social behaviour and other
breaches of the Tenant’s obligations were withdrawn.
The Respondent Landlord stated that the rent was €600 per month payable in advance
from the commencement of the tenancy. She explained that the rent was recorded in the
Letting Agreement dated the 4 February 2014 at €650 but she agreed to reduce it to
€600. She outlined that she received a deposit of €600 at the commencement of the
tenancy but she did not receive rent of €600 in advance for the first month. She explained
that she brought the rental payments in line by applying the deposit as the first month’s
rent so that the rent was being paid in advance.
The Respondent Landlord referred to text messages sent to the Appellant Tenant dated
the 21 March 2014 requesting arrears of rent to be paid. Mr Ryan gave evidence that he
hand delivered the notice dated the 7 October 2014to the Appellant Tenant notifying the
Appellant Tenant if the rent arrears of €1,300 were not paid within14 days, the Landlord
was permitted to serve a Notice of Termination giving the Appellant Tenant 28 days
notice. The Respondent Landlord outlined that €700 was transferred into their bank
account shortly after this notice was served but the rent was always in arrears as it was
never fully brought upto date after the Notice of the 7 October 2014 was served. She
explained she was in constant contact with the Appellant Tenant regarding rent arrears
and referred to a text message dated the 21 May 2015 notifying the Appellant Tenant that
she would serve an eviction notice that week if the rent arrears were not paid into their
bank account by the following day. She referred to a 14 day warning letter which was
served on the 10 July 2015 notifying the Appellant Tenant that if the rent arrears of
€1,714 were not paid within14 days, the Landlord was permitted to serve a Notice of
Termination giving the Appellant Tenant 28 days notice. She stated that a Notice of
Termination was served on the 18 August 2015 notifying the Appellant Tenant that the
tenancy would terminate on the 18 September 2015. The Respondent Landlord referred
to a letter to the Appellant Tenant dated the 7 January 2016 outlining that the termination
date had been extended to the 18 December 2015 and giving a further extension to the
31 January 2016. The Appellant Tenant gave evidence that the Landlords signed the
Notices of the 7 October 2014, 10 July 2015 and 18 August 2015.
The Respondent Landlord explained that no payments have been received from Social
Welfare since late December 2015.She explained that since the rental statement
submitted to the RTB set out rent due of €1,777 which covered the rent due upto the
4May 2016, she had received a payment of €200 on the 29 April 2016 and €200 on the
26 May 2016. She outlined that the rent arrears currently stand at €3,177 to cover upto
the 5 August 2016 being €1,777 plus €1,800 (rent due from the 5 May to the 4 August
2016) less €400 rent paid.
In cross examination by the Appellant Tenant, the Landlord stated that receipts were not
provided for cash payments as the Appellant Tenant did not request them. When
questioned by the Tribunal the Landlord confirmed that they had not received any
payments, cash or otherwise, from the Appellant Tenant, other than as disclosed in the
rental statement and the two additional payment of €200 on 29 April 2016 and 26 May
2016.
In summation, the Respondent Landlord’s Representative stated that the Landlord does
not hold a deposit, that the rent was continuously in arrears since the commencement of
the tenancy and the Appellant Tenant was afforded an opportunity to bring the rent into
line. She said that the Landlord complied with requirements in the legislation and showed
extreme forbearance as it was 11 months since the Notice of Termination was served.
She submitted that the Tribunal may not take the financial circumstance or otherwise of
the Tenant into account. She stated that the Landlord was seeking a Determination Order
ordering that the Appellant Tenant vacate the dwelling and pay rent arrears.
6. Matters Agreed Between the Parties
1. The Tenancy commenced on the 5 February 2014 and the Appellant Tenant was in
occupation of the dwelling at the date of the hearing.
2. The rent is €600 per month.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons are set out hereunder.
7.1 Finding: The Appellant Tenant was in breach of her obligation under Section 16 (a) of
the Act to pay rent on the day it falls due and the arrears of rent up to the date of the
hearing on the 12 July 2016 are €2,735.34.
Reasons: .The Tribunal accepts on the balance of probabilities the Respondent
Landlord’s evidence in relation to the amount of rent paid upto the date of the hearing.
The Tribunal finds the evidence of the Respondent Landlord regarding rent arrears to be
more consistent than the Appellant Tenant’s evidence .The Appellant Tenant referred to
payments she alleged were paid in cash to the Landlord but were not recorded in the
rental statement. She was unclear in her evidence regarding payments of rent made and
changed her evidence during the course of the hearing in relation to when the alleged
cash payment of €2,000 was made to the Landlords. The Landlords directed in the
Letting Agreement dated the 4 February 2014 that rental payments were to be made to
the Landlords’ bank account which provided a system of recording all payments made.
The Tribunal was not satisfied with the Appellant Tenant’s explanation as to the reason
that all payments she claimed were made were not lodged to the Landlord’s bank
account.
The Tribunal accepts the Landlords’ evidence in the rental statement submitted to the
RTB setting out rent due of €1,777.50 which covered the rent due upto the 4 May 2016,
and that the only additional payments received since the rental statement were payments
of €200 on the 29 April 2016 and €200 on the 26 May 2016. While the Landlord referred
to a figure of €1,777 for rent arrears due upto the 4 May 2016 in her direct evidence, the
exact figure in the rental statement was €1,777.50. From the 5 May 2016 to the date of
the hearing being the 12 July 2016 the Appellant Tenant owed rent for a period of 2
months and 8 days. Calculated at the rate of €600 per month the total amount of rent due
from the 5 May 2016 to the date of the hearing (12 July 2016) is € 1,357.84 being 2
months X €600 = €1,200 + €157.84 ( 8 days at €19.73 per day – daily rate (12 X
€600/365). Therefore the rent arrears upto the date of the hearing are €2,735.34 being
€1,777.50 (rent as per rental statement) + €1,357.84 (rent from 5 May 2016 to 12 July
2016) less €400 (payments made by Appellant Tenant not set out in the rental
statement).
7.2 Finding: The Appellant Tenant is over holding as the Notice of Termination served on
the 18 August 2015 by the Landlord on the Appellant Tenant is valid.
Reasons: The Tribunal is satisfied that the Landlords complied with all of the
requirements for the termination of a tenancy at No. 1 in the Table to section 34, Part 4 of
the Act. The Tribunal accepts Mr Ryan’s evidence that he served the notice dated the 7
October 2014 on the Appellant Tenant. The rental statement records that the rent was in
arrears after the Notice of the 7 October 2014 up to the date of the hearing. The notice of
the 7 October 2014 complied with the requirement that the Appellant Tenant is given
notice that she was in breach of her obligation to pay rent, notification that the Landlords
are entitled to terminate the tenancy if the Appellant Tenant fails to remedy the arrears
and set out that the arrears are required to be remedied within a reasonable period of
time specified in that notification being 14 days.
The requirements at No. 1 in the Table to section 34 apply where the tenants has been in
occupation of the dwelling for a continuous period of 6 months and is known as a “Part 4
tenancy”. The tenancy is a Part 4 tenancy as it commenced on the 5 February 2014.
Section 57 (b) of the Act provides that the requirements in Part 5 of the Act for a valid
termination of tenancy are in addition to the requirements of Part 4 of the Act. The
Tribunal is satisfied that the Landlords complied with all of the requirements of Part 4 of
the Act which is the first step in the process of the service of a valid notice of termination
prior to commencement of the requirements for a valid termination of the tenancy under
Part 5 of the Act. The requirements of Part 5 of the Act were complied with bythe service
of the 14 day Notice of Rent Arrearsas per Section 67(3) of the Act which was served on
the 10 July 2015being the second step in the process and a Notice of Termination
satisfying the requirements of Section 62 and 67(2) (b) (ii) of the Act which was served on
the 18 August 2015being the third step in the process.
The Appellant Tenant and all occupants are required to vacate the dwelling as a valid
Notice of Termination has been served. The Tribunal allows 28 days from the issue of the
Determination Order by the Board for the Appellant Tenant and all occupants to vacate
the dwelling having regard to the fact that the Appellant Tenant lives in the dwelling with
her children and elderly father.
7.3 Finding: There is no deposit to be refunded to the Appellant Tenant.
Reason:The Tribunal accepts the Respondent Landlord’s evidence that the initial deposit
paid was applied towards the first month’s rent so that the rent was being paid in
advance.
7.4 Finding: The Landlords were not on notice of the claim regarding the standard and
maintenance of the dwelling in advance of the hearing. Accordingly, the Appellant
Tenant’s claim regarding the standard and maintenance of the dwelling was not before
the Tribunal for determination.
Reason:There was no reference made to a dispute in relation to the standard and
maintenance of the dwelling in the Appeal received by the RTB on the 20 May 2016 . The
Landlords were not on notice of any claim regarding the standard and maintenance of the
dwelling in advance of the hearing. The Tribunal finds that it would be prejudicial to the
Landlords to make any finding in circumstances where they were not on notice of a claim
regarding the standard and maintenance of the dwelling in advance of the hearing.
8. Determination:
Tribunal Reference TR0516-001780
In the matter of Crina Tudor (Tenant) and Michelle Kehoe (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
1. The Notice of Termination served by the Respondent Landlord on the 18 August
2015 requiring the Appellant Tenant to vacate the dwelling on the 18 September 2015
in respect of the tenancy at 24 Asgard Avenue, Grange Manor, Waterford is valid.
2. The Appellant Tenant and all persons residing in the above dwelling shall vacate
and give up possession of the dwelling within 28 days of the date of the issue of the
Determination Order by the Board.
3. The Appellant Tenant shall pay the total sum of €2,735.34 to the Respondent
Landlord in 9 consecutive monthly payments of € 300 on the 28th day of each month
followed by one payment of €35.34 in the immediately succeeding month commencing
on the 28th day of the month immediately following the date of the issue of the
Determination Order by the Board. This sum represents rent arrears of €2,735.34 in
respect of the above dwelling.
4. The enforcement of the Order for such payment of €2,735.34 will be deferred and
the total sum owing will be reduced by the cumulative sum paid in the monthly
instalment(s) made by the Appellant Tenant on each due date until the total sum of
€2,735.34 has been paid in full.
5. For the avoidance of doubt any default in the payment of the monthly instalment
shall act to cancel any further deferral and the balance due at the date of default of any
such monthly payment shall immediately become due and owing to the Respondent
Landlord.
6. The Appellant Tenant shall continue to pay rent from the 12 July 2016 (date of
hearing) at the monthly rate of €600, or proportionate part thereof at the daily rate of
€19.73, unless lawfully varied, and any other charges set out in the terms of the
tenancy agreement, for each month or part thereof, until such time as she vacates the
above dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
28 July 2016.
Signed:
John Keane Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0717-002495 / Case Ref No: 0517-34062
Appellant Tenant: Lee Wellstead
Respondent Landlord: Oliver Parkinson
Address of Rented Dwelling: Danganroe, Castletown , Co. Laois
Tribunal: Grainne Duggan (Chairperson)
Rosemary Healy Rae, Brian Murray
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 22 September 2017 at 2:30
Attendees: Lee Wellstead, Appellant Tenant
Owen Duggan, Threshold, Tenant Representative
Francisco Di Martino, Threshold, Tenant
Representative
Gary Ruan, Witness for Tenant
Oliver Parkinson, Respondent Landlord,
Ian Harte, Landlord Repesentative
Karl Meehan, Witness for Landlord
In Attendance: DTI Stenography
1. Background:
On 09 May 2017 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 28 June 2017. The Adjudicator determined that:
1. The Notices of Termination served on 15th February 2017 and 24th March 2017 by
the Respondent Landlord on the Applicant Tenant, in respect of the tenancy of the
dwelling at Danganroe, Castletown, County Laois, are invalid.
2. The Respondent Landlord shall pay the total sum of €2,209.83 to the Applicant Tenant
within 35 days of the date of issue of the Order, being damages of €3,000.00 for the
consequences of unlawfully terminating the Applicant Tenant’s tenancy having deducted
€790.17 in rent arrears, in respect of the tenancy of the above dwelling.
Subsequently an appeal was received from the Tenant on 13 July 2017 and the grounds
of the appeal: Other, Invalid Notice of termination, Unlawful termination of tenancy (Illegal
eviction).
The RTB constituted a Tenancy Tribunal and appointed Grainne Duggan, Rosemary
Healy Rae, Brian Murray as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Grainne Duggan to be the chairperson of the Tribunal (“the
Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 22 September 2017 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed. In particular, she
outlined that the Tribunal was a formal procedure but that it would be held in as informal a
manner as was possible, that the person who appealed (the Appellant Tenant) would be
invited to present his case first, that there would be an opportunity for cross-examination
by the Respondent Landlord, that the Respondent Landlord would then be invited to
present his case, and that there would then be an opportunity for cross-examination by
the Appellant Tenant. The Chairperson explained that following this, both parties would
be given an opportunity to make a final submission. She reminded the parties that the
hearing was a de novo hearing.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the parties that as a result of the hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only and that the hearing before the
Tribunal would lead to the final determination as to facts.
The Chairperson stated that the Tribunal would be willing to consider a short adjournment
for the purpose of allowing the parties to try and negotiate a settlement or agreement of
the dispute should the parties so wish. This was declined by both parties.
5. Submissions of the Parties:
THE APPELLANT’S CASE
The Appellant Tenant stated that his rent in 2012 was €480 per month and that this sum
was reduced to €450 a month in 2015. He admitted that rent arrears of €32 a month did
accrue but that these arrears were as a result of the Respondent Landlord failing to sign
the form for rent supplement. The Appellant Tenant says that his rent supplement was
then cut off from 15 April 2017 and he admitted that he did not pay rent from 15 April
2017 to 7 June 2017, not even the top up amount he had always paid himself in addition
to the rent supplement.
The Appellant Tenant shares custody of his teenage daughter and she also lived with him
at the dwelling three to four nights each week.
The Appellant Tenant gave evidence as to the events of 8 June 2017 when his tenancy of
the dwelling was terminated. He said that he left the dwelling around 8pm to visit his
partner who was in hospital. When he returned to the dwelling around 10pm, it appeared
as if the house had been broken into. He said the locks had been changed and the lock
had been cut off of the outside shed. He said that he rang the Gardaí and that three of the
Respondent Landlord’s representatives later turned up at the dwelling. The Gardaí
permitted him access to the dwelling and then he left. The Appellant Tenant stated that
he retrieved his possessions on 3 July 2017, following an application to the High Court.
The Appellant Tenant gave evidence that he stayed in his car on the night of 8 June 2017
and for a number of nights thereafter. He says that since his tenancy was terminated he
moves between his partner’s house and a friend’s house. He says that his possessions
are currently stored in another friend’s shed and that he may need to make a financial
contribution to his friend for this.
The Appellant Tenant stated that when his daughter now comes to stay with him, she has
to stay in his partner’s house. He stated that she does not have her own room in this
house and that she has to sleep in her younger half-brother’s bedroom. The Appellant
Tenant says that he has looked for other accommodation. He needs to stay in the area as
his daughter attends the local community school and has been unable to find
accommodation in the area.
The Appellant Tenant gave evidence that €380 of his daughter’s money was missing from
the dwelling, as was her tablet which was purchased for Stg£189 two or three years ago,
an antique mirror which was purchased for Stg£300, an old iPhone and some of his tools.
He said that his possessions were put into black bags and that clothes and food items
were put in the same bag.
The Appellant Tenant stated that he believed that the adjudicator’s award was
conservative. The Appellant Tenant stated that he had put the figure of €15,000 in his
appeal just to have a figure but that he now believed €7,000 would be suitable
compensation for the damage and upset that was caused to him by the unlawful
termination of the tenancy.
The Appellant Tenant stated his daughter was quite upset by the experience. She
considered the dwelling her home and now she doesn’t even have her own bedroom at
his partner’s house. He said that due to the nature of his living arrangements, he has
been described as at risk of homelessness.
Mr Duggan of Threshold gave evidence that he had spoken to the Respondent Landlord
at the time and told him what type and length of notice the Appellant Tenant was entitled
to but that the Respondent Landlord did not heed his advice.
THE RESPONDENT’S CASE
The Respondent Landlord agrees with the adjudicator’s report in relation to the rent
arrears outstanding.
The Respondent Landlord gave evidence that he was unable to read and so did not
understand what the Appellant Tenant wanted him to sign when he gave him the rent
supplement form. He admitted he had signed the form before when asked to do so by the
Appellant Tenant.
The Respondent Landlord stated that he had a formal lease agreement prepared by his
solicitor but the Appellant Tenant had refused to sign it. The Respondent Landlord said
that he had told the Appellant Tenant before Christmas 2016 that he wanted him to leave
because his sister was moving into the dwelling.
The Respondent Landlord’s representative, Mr Harte, also gave evidence. Mr Harte said
that they had spent two days emptying the dwelling and that everything had been stored
in the outside shed. Mr Harte showed pictures of how the Appellant Tenant’s items had
been stored and denied that any damage had been caused. Mr Harte said that the
Appellant Tenant had been given a week to remove his belongings.
Mr Harte said that there was some damage caused to the dwelling by the Appellant
Tenant, in particular water damage to a bedroom floor. The electricity bill had not been
discharged either. Mr Harte attempted to introduce a counterclaim by the Respondent
Landlord but this had not been included in the original application before the adjudicator
at first instance.
Mr. Harte stated that the Landlord thought the notice of termination was okay and that the
reason for the termination was that the Landlord’s sister had 5 children and needed to
move into the dwelling.
Mr Harte said that the Respondent Landlord was happy to pay the award made following
the adjudication hearing and had a draft for the Appellant Tenant made out in that
amount.
6. Matters Agreed Between the Parties
The parties agreed that no security deposit was paid and that they entered into an oral
tenancy agreement which commenced on or around 10 February 2012.
7. Findings and Reasons:
Upon reviewing the dispute fully, including the documentation submitted in advance,
along with the submissions made at hearing, the Tribunal determines the following as
fact:
1. The Notices of Termination served by the Respondent Landlord on the Appellant
Tenant on the 15th February 2017 and 24th March 2017 are invalid. It was not disputed
that this was an unlawful termination of a tenancy. This appeal concerned the quantum of
damages awarded to the Appellant Tenant only. The Tribunal finds that the Appellant
Tenant is entitled to be compensated for the damage he suffered.The Respondent
Landlord shall pay the total sum of €3,709.83 to the Applicant Tenant within 56 days of
the date of issue of the Order, being damages of €4,500.00 for the consequences of
unlawfully terminating the Applicant Tenant’s tenancy having deducted €790.17 in rent
arrears, in respect of the tenancy of the above dwelling.
Summary of Reasons
1. The Appellant Tenant did not appeal the determination by the adjudicator that he owes
the Respondent Landlord rent arrears in the sum of €790.17.
2. The Respondent Landlord accepts that this was an unlawful termination of a tenancy.
There is no doubt, that the manner in which the Respondent Landlord terminated the
Appellant Tenant’s tenancy was unlawful and wrong. Moreover, the Respondent Landlord
had received advice from Mr Duggan of Threshold to the effect that this was an unlawful
termination but he proceeded nonetheless.
3. The Appellant Tenant and his daughter suffered distress, loss and inconvenience as a
family due to the Respondent Landlord unlawfully gaining possession of the dwelling on 8
June 2017. The termination of the tenancy took place at a time when the Appellant
Tenant was visiting his partner in hospital late one evening. The Appellant Tenant had
nowhere to go and was forced to sleep in his car for a number of nights. The Appellant
Tenant has been unable to find suitable accommodation since. He alternates between
living with his partner and his friend with his possessions mainly with another friend. Due
to the volatile nature of his living arrangement, he says he has been categorised as at risk
of homelessness.
4. In particular, this unlawful termination of the tenancy must have had a significant effect
on the Appellant Tenant’s teenage daughter. The dwelling was her home and she had her
own bedroom there. The manner in which the tenancy was terminated must have
undoubtedly have been very upsetting for her. She no longer has a room to call her own
when she stays with her father at his partner’s house and must sleep in her younger halfbrother’s
bedroom. She has no room of her own. Although the Appellant Tenant’s
daughter did not give evidence as to how the termination of the tenancy affected her,
there can be no doubt that it must have done so.
5. Having carefully considered the oral evidence of the Appellant Tenant, it is accepted
that the Appellant Tenant and his daughter suffered distress, loss and inconvenience as a
result of the unlawful termination of the tenancy by the Respondent Landlord. Having
carefully considered the entirety of the evidence presented and the losses suffered by the
Applicant Tenant and his daughter it is considered that the appropriate quantum of
damages to award in the circumstances of this case is €4,500.00. A sum of €4,500.00 is
awarded to the Applicant Tenant to reflect the inconvenience, distress and loss suffered
due to the unlawful termination of his tenancy pursuant to section 115(2)(d) of the
Residential Tenancies Act 2004.
8. Determination:
Tribunal Reference TR0717-002495
In the matter of Lee Wellstead (Tenant) and Oliver Parkinson (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
1. The Notices of Termination served by the Respondent Landlord on the Appellant
Tenant on the 15th February 2017 and 24th March 2017 in respect of the tenancy of
the dwelling at Danganroe, Castletown, Laois are invalid.
2. The Respondent Landlord shall pay the total sum of €3,709.83 to the Appellant
Tenant within 56 days of the date of issue of the Order, being damages of €4,500.00
for the consequences of unlawfully terminating the Applicant Tenant’s tenancy having
deducted €790.17 in rent arrears, in respect of the tenancy of the dwelling at
Danganroe, Castletown, Laois.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
10 October 2017.
Signe
d
Grainne Duggan Chairperson
For and on behalf of the Tribunal.
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0717-002495 / Case Ref No: 0517-34062
Appellant Tenant: Lee Wellstead
Respondent Landlord: Oliver Parkinson
Address of Rented Dwelling: Danganroe, Castletown , Co. Laois
Tribunal: Grainne Duggan (Chairperson)
Rosemary Healy Rae, Brian Murray
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 22 September 2017 at 2:30
Attendees: Lee Wellstead, Appellant Tenant
Owen Duggan, Threshold, Tenant Representative
Francisco Di Martino, Threshold, Tenant
Representative
Gary Ruan, Witness for Tenant
Oliver Parkinson, Respondent Landlord,
Ian Harte, Landlord Repesentative
Karl Meehan, Witness for Landlord
In Attendance: DTI Stenography
1. Background:
On 09 May 2017 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 28 June 2017. The Adjudicator determined that:
1. The Notices of Termination served on 15th February 2017 and 24th March 2017 by
the Respondent Landlord on the Applicant Tenant, in respect of the tenancy of the
dwelling at Danganroe, Castletown, County Laois, are invalid.
2. The Respondent Landlord shall pay the total sum of €2,209.83 to the Applicant Tenant
within 35 days of the date of issue of the Order, being damages of €3,000.00 for the
consequences of unlawfully terminating the Applicant Tenant’s tenancy having deducted
€790.17 in rent arrears, in respect of the tenancy of the above dwelling.
Subsequently an appeal was received from the Tenant on 13 July 2017 and the grounds
of the appeal: Other, Invalid Notice of termination, Unlawful termination of tenancy (Illegal
eviction).
The RTB constituted a Tenancy Tribunal and appointed Grainne Duggan, Rosemary
Healy Rae, Brian Murray as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Grainne Duggan to be the chairperson of the Tribunal (“the
Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 22 September 2017 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed. In particular, she
outlined that the Tribunal was a formal procedure but that it would be held in as informal a
manner as was possible, that the person who appealed (the Appellant Tenant) would be
invited to present his case first, that there would be an opportunity for cross-examination
by the Respondent Landlord, that the Respondent Landlord would then be invited to
present his case, and that there would then be an opportunity for cross-examination by
the Appellant Tenant. The Chairperson explained that following this, both parties would
be given an opportunity to make a final submission. She reminded the parties that the
hearing was a de novo hearing.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the parties that as a result of the hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only and that the hearing before the
Tribunal would lead to the final determination as to facts.
The Chairperson stated that the Tribunal would be willing to consider a short adjournment
for the purpose of allowing the parties to try and negotiate a settlement or agreement of
the dispute should the parties so wish. This was declined by both parties.
5. Submissions of the Parties:
THE APPELLANT’S CASE
The Appellant Tenant stated that his rent in 2012 was €480 per month and that this sum
was reduced to €450 a month in 2015. He admitted that rent arrears of €32 a month did
accrue but that these arrears were as a result of the Respondent Landlord failing to sign
the form for rent supplement. The Appellant Tenant says that his rent supplement was
then cut off from 15 April 2017 and he admitted that he did not pay rent from 15 April
2017 to 7 June 2017, not even the top up amount he had always paid himself in addition
to the rent supplement.
The Appellant Tenant shares custody of his teenage daughter and she also lived with him
at the dwelling three to four nights each week.
The Appellant Tenant gave evidence as to the events of 8 June 2017 when his tenancy of
the dwelling was terminated. He said that he left the dwelling around 8pm to visit his
partner who was in hospital. When he returned to the dwelling around 10pm, it appeared
as if the house had been broken into. He said the locks had been changed and the lock
had been cut off of the outside shed. He said that he rang the Gardaí and that three of the
Respondent Landlord’s representatives later turned up at the dwelling. The Gardaí
permitted him access to the dwelling and then he left. The Appellant Tenant stated that
he retrieved his possessions on 3 July 2017, following an application to the High Court.
The Appellant Tenant gave evidence that he stayed in his car on the night of 8 June 2017
and for a number of nights thereafter. He says that since his tenancy was terminated he
moves between his partner’s house and a friend’s house. He says that his possessions
are currently stored in another friend’s shed and that he may need to make a financial
contribution to his friend for this.
The Appellant Tenant stated that when his daughter now comes to stay with him, she has
to stay in his partner’s house. He stated that she does not have her own room in this
house and that she has to sleep in her younger half-brother’s bedroom. The Appellant
Tenant says that he has looked for other accommodation. He needs to stay in the area as
his daughter attends the local community school and has been unable to find
accommodation in the area.
The Appellant Tenant gave evidence that €380 of his daughter’s money was missing from
the dwelling, as was her tablet which was purchased for Stg£189 two or three years ago,
an antique mirror which was purchased for Stg£300, an old iPhone and some of his tools.
He said that his possessions were put into black bags and that clothes and food items
were put in the same bag.
The Appellant Tenant stated that he believed that the adjudicator’s award was
conservative. The Appellant Tenant stated that he had put the figure of €15,000 in his
appeal just to have a figure but that he now believed €7,000 would be suitable
compensation for the damage and upset that was caused to him by the unlawful
termination of the tenancy.
The Appellant Tenant stated his daughter was quite upset by the experience. She
considered the dwelling her home and now she doesn’t even have her own bedroom at
his partner’s house. He said that due to the nature of his living arrangements, he has
been described as at risk of homelessness.
Mr Duggan of Threshold gave evidence that he had spoken to the Respondent Landlord
at the time and told him what type and length of notice the Appellant Tenant was entitled
to but that the Respondent Landlord did not heed his advice.
THE RESPONDENT’S CASE
The Respondent Landlord agrees with the adjudicator’s report in relation to the rent
arrears outstanding.
The Respondent Landlord gave evidence that he was unable to read and so did not
understand what the Appellant Tenant wanted him to sign when he gave him the rent
supplement form. He admitted he had signed the form before when asked to do so by the
Appellant Tenant.
The Respondent Landlord stated that he had a formal lease agreement prepared by his
solicitor but the Appellant Tenant had refused to sign it. The Respondent Landlord said
that he had told the Appellant Tenant before Christmas 2016 that he wanted him to leave
because his sister was moving into the dwelling.
The Respondent Landlord’s representative, Mr Harte, also gave evidence. Mr Harte said
that they had spent two days emptying the dwelling and that everything had been stored
in the outside shed. Mr Harte showed pictures of how the Appellant Tenant’s items had
been stored and denied that any damage had been caused. Mr Harte said that the
Appellant Tenant had been given a week to remove his belongings.
Mr Harte said that there was some damage caused to the dwelling by the Appellant
Tenant, in particular water damage to a bedroom floor. The electricity bill had not been
discharged either. Mr Harte attempted to introduce a counterclaim by the Respondent
Landlord but this had not been included in the original application before the adjudicator
at first instance.
Mr. Harte stated that the Landlord thought the notice of termination was okay and that the
reason for the termination was that the Landlord’s sister had 5 children and needed to
move into the dwelling.
Mr Harte said that the Respondent Landlord was happy to pay the award made following
the adjudication hearing and had a draft for the Appellant Tenant made out in that
amount.
6. Matters Agreed Between the Parties
The parties agreed that no security deposit was paid and that they entered into an oral
tenancy agreement which commenced on or around 10 February 2012.
7. Findings and Reasons:
Upon reviewing the dispute fully, including the documentation submitted in advance,
along with the submissions made at hearing, the Tribunal determines the following as
fact:
1. The Notices of Termination served by the Respondent Landlord on the Appellant
Tenant on the 15th February 2017 and 24th March 2017 are invalid. It was not disputed
that this was an unlawful termination of a tenancy. This appeal concerned the quantum of
damages awarded to the Appellant Tenant only. The Tribunal finds that the Appellant
Tenant is entitled to be compensated for the damage he suffered.The Respondent
Landlord shall pay the total sum of €3,709.83 to the Applicant Tenant within 56 days of
the date of issue of the Order, being damages of €4,500.00 for the consequences of
unlawfully terminating the Applicant Tenant’s tenancy having deducted €790.17 in rent
arrears, in respect of the tenancy of the above dwelling.
Summary of Reasons
1. The Appellant Tenant did not appeal the determination by the adjudicator that he owes
the Respondent Landlord rent arrears in the sum of €790.17.
2. The Respondent Landlord accepts that this was an unlawful termination of a tenancy.
There is no doubt, that the manner in which the Respondent Landlord terminated the
Appellant Tenant’s tenancy was unlawful and wrong. Moreover, the Respondent Landlord
had received advice from Mr Duggan of Threshold to the effect that this was an unlawful
termination but he proceeded nonetheless.
3. The Appellant Tenant and his daughter suffered distress, loss and inconvenience as a
family due to the Respondent Landlord unlawfully gaining possession of the dwelling on 8
June 2017. The termination of the tenancy took place at a time when the Appellant
Tenant was visiting his partner in hospital late one evening. The Appellant Tenant had
nowhere to go and was forced to sleep in his car for a number of nights. The Appellant
Tenant has been unable to find suitable accommodation since. He alternates between
living with his partner and his friend with his possessions mainly with another friend. Due
to the volatile nature of his living arrangement, he says he has been categorised as at risk
of homelessness.
4. In particular, this unlawful termination of the tenancy must have had a significant effect
on the Appellant Tenant’s teenage daughter. The dwelling was her home and she had her
own bedroom there. The manner in which the tenancy was terminated must have
undoubtedly have been very upsetting for her. She no longer has a room to call her own
when she stays with her father at his partner’s house and must sleep in her younger halfbrother’s
bedroom. She has no room of her own. Although the Appellant Tenant’s
daughter did not give evidence as to how the termination of the tenancy affected her,
there can be no doubt that it must have done so.
5. Having carefully considered the oral evidence of the Appellant Tenant, it is accepted
that the Appellant Tenant and his daughter suffered distress, loss and inconvenience as a
result of the unlawful termination of the tenancy by the Respondent Landlord. Having
carefully considered the entirety of the evidence presented and the losses suffered by the
Applicant Tenant and his daughter it is considered that the appropriate quantum of
damages to award in the circumstances of this case is €4,500.00. A sum of €4,500.00 is
awarded to the Applicant Tenant to reflect the inconvenience, distress and loss suffered
due to the unlawful termination of his tenancy pursuant to section 115(2)(d) of the
Residential Tenancies Act 2004.
8. Determination:
Tribunal Reference TR0717-002495
In the matter of Lee Wellstead (Tenant) and Oliver Parkinson (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
1. The Notices of Termination served by the Respondent Landlord on the Appellant
Tenant on the 15th February 2017 and 24th March 2017 in respect of the tenancy of
the dwelling at Danganroe, Castletown, Laois are invalid.
2. The Respondent Landlord shall pay the total sum of €3,709.83 to the Appellant
Tenant within 56 days of the date of issue of the Order, being damages of €4,500.00
for the consequences of unlawfully terminating the Applicant Tenant’s tenancy having
deducted €790.17 in rent arrears, in respect of the tenancy of the dwelling at
Danganroe, Castletown, Laois.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
10 October 2017.
Signe
d
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001652 / Case Ref No: 0116-23754
Appellant Tenant: Neil McMahon
Respondent Landlord: Baggot Court Developments
Address of Rented Dwelling: 3_7/10 Baggot Court , Dublin 2, D02AD72
Tribunal: Peter Shanley (Chairperson)
Eoin Byrne, Ciara Doyle
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 19 May 2016 at 2:30
Attendees: Neil McMahon (Appellant Tenant)
Harry Carpendale (Appellant Tenant’s solicitor)
Igor Fleming (Respondent Landlord’s
representative)
In Attendance: Wordwave T/A DTI Stenographers
1. Background:
On 25 January 2016 the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The Tenant also made an
application to the Residential Tenancies Board received on the same date. The matters
were referred to an Adjudication which took place on 16 February 2016. The Adjudicator
determined that:
1. That the Respondent Tenant is out of time to challenge the rent review of the
29th of June 2015.
2. That the sum of €1,030 is owing in arrears of rent provided the rent review is
not challenged.
3. That there will be a stay on enforcement of the portion of €900 from those
rent arrears if within 14 days of the Date of this Determination Order an application is
made or is in being to the Board (or on appeal the Circuit Court) under section 88 of
the Residential Tenancies Act for an extension of time to challenge the rent review. If
such an extension is granted, the sum of €130 in rent arrears is due and owing and
the balance shall be remitted to the adjudicator dealing with the lawfulness of the rent
review. If an extension is refused, the sum of €1,030 shall be paid within 14 days of
the Date of this Determination Order or within 14 days of the Board (or if appealed
the Circuit Court) refusing an application for an extension under section 88 of the Act
whichever is the later.
4. That the Applicant Landlord shall replace the toilet seat within 28 days of the
date of this Determination Order.
5. That the Applicant Landlord shall repair the ceiling and carpets within 28 days
of the date of this Determination Order so that they comply with the minimum
standard regulations and are in at least a comparable condition to the condition they
were in at the commencement of the tenancy.
6. The Respondent Tenant is entitled to €100 damages for the replacement of
the lock and the Applicant Landlord is entitled to offset that against the arrears of rent
owed.
Subsequently an appeal was received from the Tenant on 7 March 2016. The grounds of
the appeal were stated to be: Standard and maintenance of dwelling; Damage in excess
of normal wear and tear; Rent arrears; Invalid Notice of termination; Rent more than
market rate (Not Applicable to Approved Housing Body Tenancies); Rent arrears and
overholding; Breach of landlord obligations. This was approved by the Board on 10 March
2016
The RTB constituted a Tenancy Tribunal and appointed Peter Shanley, Ciara Doyle, Eoin
Byrne as Tribunal members pursuant to Section 102 and 103 of the Act and appointed
Peter Shanley to be the chairperson of the Tribunal (“the Chairperson”).
On 22 April 2016 the Parties were notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing.
On 19 May 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson sought clarification on
whether the Landlord, Baggot Court Developments, was a limited company as appeared
to be the case on the face of the lease. It was confirmed by the Landlord’s representative
that Baggot Court Developments was a partnership comprising Tom Mulligan and Dermot
Mulligan.
The Chairperson confirmed with the Parties that they had received the relevant papers
from the RTB in relation to the case and that they had received the RTB document
entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath and be recorded by
the official stenographer present and he reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable
by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [section 123(3) of the 2004 Act].
5. Submissions of the Parties:
Tenant’s Submissions:
(i) Rent Arrears
The Tenant gave evidence that the tenancy commenced on 20 August 2013 at an initial
rent of €1,700 per month. By letter dated 16 July 2014 the Landlord’s agent sent a notice
of rent review to the Tenant notifying the Tenant of a rent increase to €1,775 from the
then current rent of €1,700. The letter stated that “in 35 days from the service of this
letter, that is from the 20th of August 2014, this rent increase to be deemed to be owing
from that date”.
By letter dated 29 June 2015 the Landlord’s agent sent a notice of rent review to the
Tenant notifying the Tenant of a rent increase to €1,925 from the then current rent of
€1,775. The letter stated that “in 28 days from the service of this letter, that is the 29th
(sic) of July 2015 the new rent will accrue from this date. As your lease is due to expire on
19th August 2015 the new rent will accrue from that date. This notice is served on
Wednesday 1st July 2015”
The Tenant gave evidence that on 18 August 2015, he attempted to refer a dispute to the
RTB challenging the rent review notice. The Tenant states that due to an omission in the
submission of the dispute to the RTB, the dispute case file was closed by the RTB and it
was deemed to be withdrawn.
As both the Landlord and the Tenant understood that the rent review was the subject of a
dispute pending determination by the Board, the Landlord continued to seek, and the
Tenant continued to pay, rent at the previous rate of €1,775 per month (although the
Tenant acknowledged that at the date of the hearing he was in arrears of €175).
The Tenant submitted that the Landlord is not entitled to seek rent arrears of €1,375
which, it was agreed by both parties, would be due on foot of the rent review notice dated
29 June 2015, if that notice was lawful and unchallenged.
The Tenant submitted that the rent review was unlawful in that it did not comply with the
provisions of section 20 of the Residential Tenancies Act 2004 in that it occurred more
frequently than once within a period of 12 months.
The Tenant further submitted that it is not out of time to challenge the validity of the rent
review notice. Section 22(3) of the Residential Tenancies Act 2004 provides that:
“(3)[…]a dispute in relation to a rent falling within subsection (1) must be referred to the
Board under Part 6 before
(a) the date stated in the notice under subsection (2) as the date from which that rent is
to have effect, or
(b) the expiry of 28 days from the receipt by the tenant of that notice,
whichever is the later.”
As to what constitutes a “rent falling within subsection (1)”, subsection (1) provides as
follows:
(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy
of a dwelling and which is otherwise lawful under this Part shall not have effect unless
and until the condition specified in subsection (2) is satisfied.
The condition specified in subsection (2) is that at least 28 days before the date from
which the new rent is to have effect, a notice in writing must be served by the landlord on
the tenant stating the amount of the new rent and the date from which it is to have effect.
As such the Tenant submitted that the time limit set out in subsection (3) to refer a
dispute to the Board only applies to disputes regarding the setting of a rent under a
tenancy and which is otherwise lawful under Part 3 of the Act. The Tenant submitted that
as the rent review was not “otherwise lawful” under Part 3 of the Act (being in breach of
section 20 in that it occurred more frequently than once within a period of 12 months), the
time limit prescribed by section 22(3) does not apply to the Tenant’s dispute regarding the
rent review.
The Tenant therefore submitted that (i) he is not out of time to dispute the validity of the
rent review; (ii) the rent review was unlawful; and (iii) therefore the arrears of rent due are
€175.
The Tenant further submitted that in any event the proposed rent increase was not in line
with market rent for that tenancy at that time, although he was not in a position to adduce
any evidence of comparable properties to which the Tribunal ought to have regard in
relation to this submission.
(ii) Breach of Landlord’s Obligations
The Tenant gave evidence that the Landlord was in breach of its obligations in respect of
the following matters:
(i) The fridge needed to be replaced and the Tenant had one year without a functioning
fridge.
(ii) The dishwasher needed to be replaced and a number of months passed before it
was replaced by the Landlord.
(iii) There were cinder blocks left in the Tenant’s storage bin which prevented him using
this bin to store his refuse prior to leaving it out for collection. As such the Tenant stated
that he had to store his refuse in the apartment prior to leaving it out for collection.
(iv) The toilet seat was cracked and despite requesting that this be remedied, the
Landlord had not done so.
(v) There was a leak which occurred in October 2015 and despite the Tenant notifying
the Landlord of this, nothing was done for 4 to 6 weeks. This caused an ingress of water
into the apartment resulting in the plasterwork on the ceiling becoming damp and falling
off and the carpet becoming damp.
(vi) The Tenant gave evidence that he paid €150 to fix a lock on an external
door/ventilation aperture, although no receipt was provided in respect of this expense and
the Tenant did not seek more than the €100 awarded to him by the adjudicator in respect
of this item.
(vii) The Tenant was not provided with a rent book. Although the Tenant acknowledged
that he did not ask for one and did not dispute the fact that he had been offered one at
the outset of the tenancy.
(viii)The Notice of Termination which was served on the Tenant, dated 26 December
2015 was malicious in its timing and was not served in accordance with Clause 5.2 of the
lease which provided that “any notice served by the Landlord on the Tenant shall be
sufficiently served if sent by registered or recorded post to the Tenant at the property”.
The Tenant acknowledged that the Landlord had withdrawn the Notice of Termination and
was not seeking to rely on it.
Landlord’s Submissions:
(i) Rent Arrears
The Landlord’s agent submitted that the rent review notice was served correctly and that
the rent review did not occur within a 12-month period from the last rent review, such as
would contravene section 20 of the Residential Tenancies Act 2004.
He submitted that the change in the rent cannot take effect twice within a 12-month
period and that it was not the Landlord’s intention for the rent increase to take effect until
12 months had elapsed since the last increase. If the rent increase on foot of the rent
review notice is deemed to set a new rent within 12 months of the last increase, the
Landlord’s agent submitted that this is a breach of the requirements of section 20 by one
day and accordingly amounts to no more than a minor slip, which should be overlooked.
The Landlord’s agent confirmed that having been notified by the RTB of a dispute
regarding the rent review referred by the Tenant, the Landlord continued to charge rent at
the previous rate of €1,775 per month. This, he submitted, was due to section 86 of the
Residential Tenancies Act 2004 which provides that pending the determination of a
dispute that has been referred to the Board (but subject to that determination when it is
made) if the dispute relates to the amount of rent payable, no increase in the amount of
the rent may be made. The Landlord’s agent gave evidence that he was not unduly
concerned that he had not received any further correspondence from the RTB as at the
time it was not unusual in his experience for there to be a 3 to 6 month period from the
referral of a dispute until an adjudication would take place. He stated that he was
ultimately informed by the RTB in December 2015 that the dispute in respect of the rent
review was “withdrawn”.
The Landlord stated that the proposed increased rent was in line with the market rent for
the tenancy. The Landlord provided a number of examples of comparable properties
advertised in September 2015 at rents not less than the new rent being sought on foot of
the rent review.
The Landlord’s agent submitted that once the dispute in respect of the rent review was no
longer pending, and had not been successfully challenged by the Tenant, the Landlord
was entitled to the increased rent as set pursuant to the rent review. The Landlord’s agent
submitted that the Landlord was entitled to this rent backdated to the date specified in the
rent review notice, i.e. 19 August 2015.
The Parties agreed that if the Landlord was entitled to the new increased rent from 19
August 2015, the amount of arrears stood at €1,375.
(ii) Breach of Landlord’s obligations
The Landlord’s agent gave evidence that following emails of 17 and 25 September 2014,
he arranged for a contractor to carry out repairs to the fridge. The Landlord’s agent stated
that the fridge was replaced on 3 July 2015.
The Landlord’s agent provided a receipt supporting his evidence that a new dishwasher
was purchased on 3 October 2014, the Tenant having complained that it was not working
properly by email dated 17 September 2014.
The Landlord’s agent gave evidence that he made several attempts to arrange access to
the dwelling for the purposes of dealing with the Tenant’s complaints but that access was
not made available by the Tenant.
The Landlord’s agent gave evidence that he was informed of the leak in the roof of the
property in October 2015 and arranged for a contractor to carry out external repairs. The
Landlord’s agent provided a receipt dated 12 November 2015 for work done by the
contractor some time prior to that date.
The Landlord’s agent gave evidence that the he was informed by the Tenant that the lock
was replaced. The Landlord’s agent gave evidence that he was happy to reimburse the
Tenant in respect of any such expenditure but that he required sight of the receipt in
respect of it. The Tenant did not have any receipt in relation to this expenditure.
The Landlord’s agent stated that at the outset of the tenancy he offered the Tenant a rent
book, however this was not requested by the Tenant. The Landlord also pointed out that
as the rental payments were made by electronic bank transfer, the bank statements act
as a record of the rent paid and fulfill the same role as a rent book.
The Landlord’s agent gave evidence that the termination notice dated 26 December 2015
had been withdrawn and was not being relied upon by the Landlord. He stated that there
was no malice in its service and that it was validly served in accordance with the
provisions of the legislation.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 20 August 2013
2. The monthly rent under the tenancy was initially €1,700.
3. The monthly rent under the tenancy was increased to €1,775 from 20 August 2014
on foot of a notice of rent review which was served on the Tenant on 16 July 2014.
4. A notice of rent review was served on the Tenant on 1 July 2015 purporting to
increase the rent to €1,925 which was to take effect from 19 August 2016.
5. A deposit of €1,700 was paid which the Landlord retains.
7. Findings and Reasons:
7.1 The Tribunal finds that the review of the rent, notice of which was sent on 29 June
2015, was unlawful as it was the second such review of rent within a 12-month period.
1. The Residential Tenancies Act 2004 (“the Act”) envisages three steps involved in the
increasing, by a Landlord, of the rent payable under a tenancy. These are:
(i) The Landlord must engage in a procedure (however described) for determining
whether and to what extent the rent should be increased. This is the “review of a rent”
within the meaning of the Act as provided for in section 24(2)(a) of the Act.
(ii) At least 28 days before the date from which the new rent is to have effect, the
Landlord must serve a “notice in writing” on the Tenant, stating the amount of the new
rent and the date from which it is to have effect. This is prescribed in section 22(2) of the
Act.
(iii) The “setting of a rent” pursuant to the review of rent. This, according to section 24(3)
of the Act, refers to (a) the oral agreeing of the rent, (b) the oral or written notification of
the rent, or (c) where the lease contains a provision whereby on the happening of an
event the increase in rent shall have effect, the rent set pursuant to that provision.
2. Section 20 of the Act provides that the review of the rent cannot take place more
frequently than once in each period of 12 months.
3. Section 21 of the Act further provides that if the lease or tenancy agreement does not
provide for a review of the rent, either party may require a review of the rent under the
tenancy to be carried out and a new rent, if appropriate, set on foot of that review.
4. Two things are clear from the foregoing: first, a “rent review” within the meaning of
the legislation involves a decision-making process that takes place prior to the notification
in writing of the new rent; second, that “rent review” cannot take place more frequently
than once in every 12-month period.
5. It is therefore the decision-making procedure engaged in by the Landlord, for the
purpose of deciding the extent of the increase in rent, that cannot occur more frequently
than once in every 12-month period.
6. No evidence was given as to when this decision-making process occurred. Having
regard to the dates on which notices sent on foot of these rent reviews, the rent review in
2014 took place at some point prior to 16 July 2014 and the rent review in 2015 took
place at some point prior to 29 June 2015.
7. The Tribunal is satisfied that the rent reviews that occurred prior to the sending of
these notices, on the balance of probabilities, occurred within, at most, two weeks of the
notices being sent. The Tribunal is satisfied, in the absence of any evidence to the
contrary, that there was no unusually long time lag between the rent review in 2014 and
the sending of the notice on 16 July 2014. The Tribunal is also satisfied, in the absence of
any evidence to the contrary, any time lags between the rent reviews and the notices sent
in 2014 and 2015 would have been approximately the same in both years.
8. That being so, and despite no evidence having been adduced by the Landlord of the
precise date on which the relevant rent reviews took place, the Tribunal is satisfied that,
on the balance of probabilities, the rent review which precipitated the notice sent on 29
June 2015, occurred less than 12 months after the rent review which precipitated the
notice sent on 16 July 2014.
9. The rent review was therefore unlawful having regard to the provisions of section
20(1)(a) of the Act.
10. In light of the finding that the rent review was invalid by reason of breaches of the
provisions of section 20(1)(a) of the Act, the Tribunal does not consider it necessary or
appropriate to make any finding as to the market rent for the dwelling.
7.2 The Tribunal finds that the Landlord is not entitled to rent arrears in respect of a rent
set on foot of an unlawful rent review.
1. The Landlord has sought to set an increased rent pursuant to an unlawful review of
the rent. The Landlord does not have any legal entitlement to this increased rent. The
Landlord’s non-entitlement to this increased rent cannot be cured by the Tenant’s failure
to challenge the rent review.
7.3 The Tribunal finds that the Tenant is not precluded from challenging the validity of the
rent review by reason of being outside the time limit prescribed by section 22(3) of the
Act, because the rent review itself was not “otherwise lawful” under Part 3 of the Act
within the meaning of section 22(1) of the Act.
1. Although the Landlord is not entitled to the increased rent, irrespective of any
challenge to the rent review, the Tribunal is satisfied that the Tenant is entitled to dispute
the legality of the rent review.
2. Section 22(3) of the Residential Tenancies Act 2004 provides that:
“(3)[…]a dispute in relation to a rent falling within subsection (1) must be referred to the
Board under Part 6 before
(a) the date stated in the notice under subsection (2) as the date from which that rent is
to have effect, or
(b) the expiry of 28 days from the receipt by the tenant of that notice,
whichever is the later.”
3. As to what constitutes a “rent falling within subsection (1)”, subsection (1) provides as
follows:
(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy
of a dwelling and which is otherwise lawful under this Part shall not have effect unless
and until the condition specified in subsection (2) is satisfied.
4. The condition specified in subsection (2) is that at least 28 days before the date from
which the new rent is to have effect, a notice in writing must be served by the landlord on
the tenant stating the amount of the new rent and the date from which it is to have effect.
5. The Tribunal finds that the time limit, set out in subsection (3), to refer a dispute to
the Board only applies to disputes regarding the setting of a rent under a tenancy which is
“otherwise lawful” under Part 3 of the Act. As the rent review was not “otherwise lawful”
under Part 3 of the Act (being in breach of section 20 in that it occurred more frequently
than once within a period of 12 months), the time limit prescribed by section 22(3) does
not apply to the Tenant’s dispute regarding the legality of the rent review.
6. As already set out above, the Tribunal is satisfied that the rent review was not lawful
and the Tribunal upholds the Tenant’s right to dispute the legality of the rent review.
7. Further, the Tribunal is satisfied that there has been no prior determination in respect
of this issue. There is no evidence before the Tribunal that the previous dispute in relation
to the validity of the rent review notice was ever referred to the Board for a decision, nor
was there ever an adjudication hearing in respect of it, nor did a determination order
issue. As such, the Tribunal is satisfied that the matters in the present case have not
previously been argued (that is, that they are not res judicata). Accordingly, the Tribunal
is satisfied that it was entitled and indeed bound to consider the arguments raised in
respect of the invalidity of the rent review.
8. Also, the Tribunal notes that section 64A of the Act, as inserted by the Residential
Tenancies Amendment Act 2015, in respect of determinations in respect of slips or
omissions, applies only to notices of termination under section 62 of the Act, and is not
stated to apply to notices under section 22 of the Act. In any event, where the Tribunal is
satisfied that the rent review was not lawful, it does not appear any such slip rule would
save the review.
7.4 Finding: The Tribunal finds that the Respondent Tenant is in breach of Section
16(a)(i) of the Residential Tenancies Act 2004 (“the Act”) in that there are arrears of rent
of €175
Reasons:
1. Section 16(a) of the Act provides that a tenant must “pay to the landlord or his or her
authorised agent (or any other person where required to do so by any enactment)—
(i) the rent provided for under the tenancy concerned on the date it falls due for
payment…”.
2. Having regard to the agreement between the Parties as to the rent due if the rent
review is unlawful, the Tribunal is satisfied that the Tenant is in arrears of rent in the
amount of €175 as at 19 May 2016.
7.5 Finding: The Tribunal finds that the Respondent Landlord is not in breach of its
obligations to the Tenant in relation to the issues of (i) the fridge, (ii) the dishwasher, (iii)
the toilet seat, (iv) the leak in the roof, (v) the rent book or (vi) the notice of termination.
Reasons:
1. The burden of proving that there was a breach by the Landlord of his obligations is
on the Tenant.
2. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the fridge in a reasonably prompt and
efficient manner. In particular, the Tribunal is satisfied that following emails of 17 and 25
September 2014, the Landlord’s agent arranged for a contractor to carry out repairs to the
fridge. The Tribunal is satisfied that the fridge was subsequently replaced on 3 July 2015.
There is no written evidence of any communication occurring after the visit of the
contractor prior to the complaints made shortly before the replacement of the fridge. If the
fridge was not working after the contractor had visited the dwelling, the Tenant should
have made the Landlord aware of this. There were clearly a number of emails after the
attendance of the contractor at the dwelling and the fridge is not referred to again. As
such, the Tenant has not proved any breach of obligations by the Landlord in this respect.
3. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the dishwasher in a reasonably prompt
and efficient manner. In particular, the Tribunal is satisfied that a new dishwasher was
purchased on 3 October 2014, the Tenant having complained that it was not working
properly by email dated 17 September 2014.
4. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the toilet seat in a reasonably prompt and
efficient manner. In particular, the Tribunal is satisfied that the Tenant sent the Landlord
an email on 23 September 2013 complaining that the toilet seat was cracked, the
Landlord’s agent responded on 25 September 2013 inviting the Tenant to source a
replacement and fit it in which case the Landlord would pay the Tenant back the cost of
this (on the provision of a receipt). By email dated 25 October 2013, the Tenant
acknowledged the Landlord’s proposition in relation to the toilet seat and agreed to
proceed on that basis.
5. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the leak in the roof in a reasonably
prompt and efficient manner. In particular, the Tribunal is satisfied that the Landlord’s
agent was informed of the leak in the roof of the property in October 2015 and arranged
for a contractor to carry out external repairs. The Tribunal is satisfied that the receipt
dated 12 November 2015 refers to work carried out by the contractor some time prior to
that date. Further, while the Tenant referred to issues surrounding dampness remaining
after the repair of the leak, there is no evidence that the Tenant suffered any loss or
inconvenience such as would entitle him to damages in this respect.
6. The Tribunal is satisfied that the Tenant was offered a rent book at the
commencement of the tenancy, that he did not request one and that the bank statements
which record all rent payments fulfil the same role as a rent book. Further, in any event,
there is no evidence whatsoever that the Tenant has suffered any loss as a result of the
failure of the Landlord to provide a rent book, such as would entitle him to damages.
7. The Tribunal is satisfied that the Landlord’s agent was entitled to serve the Notice of
Termination in the manner that he did and the Tribunal is further satisfied that the service
of the Notice of Termination was not motivated by malice.
7.6 Finding: The Tribunal finds that the Respondent Landlord is in breach of its
obligations to the Tenant in relation to the issues of the cinder blocks present in the
Tenant’s storage bin and the cost of changing the lock and the Tribunal awards the
Tenant damages in the amount of €200 in respect of these breaches.
1. The Tribunal is satisfied that the Tenant raised the issue of cinder blocks being
present in his storage bin as early as 25 October 2013 and on three occasions prior to 16
July 2014 at which point the Tenant stated that “There is refuse in my bin from a previous
tenant which I want removed. This is the fourth and final time I’ll request that to be
emptied”.
2. The Tribunal is satisfied that after a further exchange of emails, the Tenant confirmed
in an email of 25 September 2014 that the issue with the refuse bins had been resolved.
However, he noted that it had taken over a year to resolve it.
3. There is an obligation on the Landlord, pursuant to Article 12 of the Housing
(Standards for Rental Houses) Regulations 2008 to provide access to suitable refuse
facilities.
4. The Tribunal is satisfied that that the Landlord was in breach of this obligation and
failed to deal with this issue in a prompt and efficient manner in breach of his obligations
to the Tenant and that the Tenant ought to be awarded €100 damages in respect of this
breach, having regard to the nature of the inconvenience caused and the length of time
the matter took to resolve.
5. The Tribunal is satisfied that the Tenant paid to change the lock on an external
aperture and that although the Tenant claims this cost €150, the Tribunal notes that the
Tenant is only seeking €100 reimbursement for this item as he does not have a receipt to
prove the cost of the replacement of the lock.
6. The Tribunal therefore awards damages of €200 to the Tenant in respect of breach of
the Landlord’s obligations, being €100 in relation to the failure to remove cinder blocks
fromthe bin and €100 for the cost of the replacement of the lock.
8. Determination:
Tribunal Reference TR0316-001652
In the matter of Neil McMahon (Tenant) and Baggot Court Developments (Landlord)
the Tribunal in accordance with section 108(1) of the Residential Tenancies Act
2004, determines that:
1. The Rent Review, notice of which was served on the Tenant on 29 June 2015
was unlawful.
2. The Respondent Landlord shall pay the total sum of €25 to the Appellant
Tenant, on the 20th day of the month following the issue of the Order, being damages
of €200 in respect of breaches of the Landlord’s obligations having deducted the rent
arrears of €175, in respect of the tenancy of the dwelling at Apartment 3, 7-10 Baggot
Court, Dublin 2.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
26 May 2016.
Signed:
Peter ShanleyChairperson
For and on behalf of the Tribunal.
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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Canty -v- Private Residential Tenancies Board [2008] IESC 24 (30 April 2008)
URL: http://www.bailii.org/ie/cases/IESC/2008/S24.html
Cite as: [2008] 4 IR 592, [2008] IESC 24
[New search] [Context] [Printable version] [Help]
Judgment Title: Canty -v- Private Residential Tenancies Board
Neutral Citation: [2008] IESC 24
Supreme Court Record Number: 271/07
High Court Record Number: 2006 5195 P
Date of Delivery: 30 April 2008
Court: Supreme Court
Composition of Court: Kearns J., Macken J., Finnegan J.
Judgment by: Kearns J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Kearns J.
Appeal allowed
Macken J., Finnegan J.
Outcome: Allow Appeal
THE SUPREME COURT
Kearns J.
Macken J.
Finnegan J.
[Record No. S.C. 271/07]
IN THE MATTER OF THE RESIDENTIAL
TENANCIES ACT 2004
BETWEEN
JACK CANTY
SIZE=4 FACE=”Times New Roman”>
APPELLANT
AND
PRIVATE RESIDENTIAL TENANCIES BOARD
FIRST NAMED RESPONDENT
AND
DAVID CONNOLLY
SECOND NAMED RESPONDENT
JUDGMENT of Mr. Justice Kearns delivered the 30th day of April, 2008
This is an application brought on behalf of the first named respondent seeking an order striking out the appeal brought by the appellant from the judgment and order of the High Court (Laffoy J.) on 8th August, 2007. The appellant’s appeal purported to challenge various rulings made by Laffoy J. in the High Court. He also sought to put in issue as being unconstitutional various provisions of the Residential Tenancies Act 2004.
This court, in an ex tempore ruling already delivered herein on 2nd April, 2008 determined it had no jurisdiction to hear the appeal by reason of the provisions of Section 123(4) of the Residential Tenancies Act, 2004. That sub-section provides:-
“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.”
The court, however, reserved judgment on whether or not the appellant was nonetheless entitled to appeal the order for costs made against him by Laffoy J. in respect of the costs of the respondent and notice party which were awarded against him. The appellant contends that the wording of Section 124 is not sufficiently clear or specific to exclude the jurisdiction of this Court to entertain an appeal confined to the issue of costs.
By way of background, the second named respondent agreed to let to the appellant a dwelling house in Crosshaven, Co. Cork by a tenancy agreement dated 24th September, 2004. In 2005 a number of disputes arose in relation to the appellant’s tenancy which came before the first named respondent. Following a number of hearings various determinations of the Board were formalised in a Determination Order dated 19th April, 2006. A further Determination Order was made on 6th October, 2006.
The appellant sought to challenge these orders pursuant to s.123 of the Residential Tenancies Act, 2004 which provides:-
“(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).
(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.
(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.”
The only question before the Court therefore is whether or not these statutory provisions are to be interpreted as denying a right of access to the appellant to this Court to argue the appropriateness or otherwise of the costs order made against him in the High Court.
It is clear from the wording of s.123 of the Residential Tenancies Act, 2004 that no appeal lies to the High Court from a determination of the tribunal on the merits or on the facts. It is a limited entitlement to appeal on a point of law only. In exercising its jurisdiction, the High Court did not purport to determine points other than various points of law which had been canvassed by the appellant. Its ruling therefore is “final and conclusive”.
Can a costs order in these circumstances have a quality or character which puts it outside the determination of the point of law so as to permit a limited appeal to this Court?
Article 34.4.3 of the Constitution provides:-
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
In the ordinary course therefore, any decision of the High Court is subject to review by this court. It is not unusual for an appeal to come before this court which is solely confined to the issue of costs and the entitlement of an appellant in this regard is well settled (In Bonis: Vella v Morelli [1968] I.R. 11). On behalf of the first named respondent, Mr. Gerard Hogan, S.C. argues that the same constitutional provision makes it clear that the Oireachtas may restrict the appellate jurisdiction of the Supreme Court subject to the qualification in Article 34.4.4., which provides that:-
“No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to validity of any law having regard to the provisions of this constitution.”
He points out, correctly, that this is not a case involving the determination by the High Court of any constitutional issue and no such issue is before this court. He relied on the decision of this court in Minister for Justice v. Wang Zhu Jie [1993] 1 I.R. 426 to argue that the decision of Laffoy J., including her decision as to costs, was final and conclusive and immune from further appeal to this court.
In that case it was held that the provisions of s.52 of the Courts (Supplemental Provisions) Act, 1961 should be construed as effecting an exception from the absolute right of appeal provided for in Article 34.4.4. of the Constitution from decisions of the High Court to the Supreme Court. However, having read the judgments delivered by Finlay C.J. and McCarthy J. in that case I find nothing in either judgment which addresses the specific point under consideration in the instant case. I believe therefore the Court is to some degree in uncharted waters.
In my view the question can only be resolved by considering the precise wording of any statute which purports to limit the right of appeal to this court. Thus, by way of example, s.50 of the Planning & Development Act, 2000 provides at s.50(4)(f)(i):-
“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
It seems to me, without in any way deciding an issue which was not before this Court, that the word “decision” of the High Court in s. 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case. Similarly, section 42(8) of the Freedom of Information Act 1997 provides:-
“The decision of the High Court on an appeal or reference under this section shall be final and conclusive.”
Section 39 of the Courts of Justice Act 1936, which was re-enacted by section 48 of the Courts (Supplemental Provisions) Act 1961, provided as follows in relation to appeals to the High Court from the Circuit Court:-
“The decision of the High Court or of the High Court on Circuit on an appeal under this part of this Act shall be final and conclusive and not appealable.”
Again, I have no difficulty in construing these sections as altogether precluding any further appeal, even one confined to costs. By contrast, however, s.123(4) of the Residential Tenancies Act, 2004, which, if I may say so, is unsatisfactorily drafted in a number of respects, is much less clear. If the relevant sub-section simply referred to “the determination of the High Court on such an appeal” one could well argue that the decision of the High Court in relation to costs was incorporated in the determination. However, the wording contextualises the determination of the High Court by reference specifically “to the point of law concerned”.
The resolution of a point of law may on occasion compel a trial judge to determine a case in a particular way which may be contrary to the factual merits of the case. I am not saying any such situation arises in the instant case, but it is not difficult to imagine other cases where this could occur. In such a situation an appeal confined to the issue of costs might have significant merits.
For that reason, I think any statute which purports to altogether remove even a limited right of appeal on an issue such as costs should be so phrased as to make that intention clear. That is not to say that express wording in a statute is a prerequisite for this purpose, but rather that the overall intention that no further appeal should lie from any aspect of the decision of the High Court judge should be obvious from a reading of the provision in question.
In The People (Attorney General) v Conmey [1975] I.R. 34 this Court stated:-
“Any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this (the Supreme) Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous.”
I would therefore allow the appeal on this jurisdictional point and direct that the matter be listed for further hearing on the merits.
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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Canty v PRTB & Connolly v Canty [2011] IESC 28 (19 July 2011)
URL: http://www.bailii.org/ie/cases/IESC/2011/S28.html
Cite as: [2011] IESC 28
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Judgment Title: Canty v PRTB & Connolly v Canty
Neutral Citation: [2011] IESC 28
Supreme Court Record Number: 191/07 & 425/10
High Court Record Number: 2006 1286 JR & 2006 218 CA
Date of Delivery: 19/07/2011
Court: Supreme Court
Composition of Court: Denham J., Hardiman J., Fennelly J., Macken J., Finnegan J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Judgments by
Link to Judgment
Result
Concurring
Fennelly J.
Link
Other (see notes)
Denham J., Hardiman J., Macken J., Finnegan J.
Notes on Memo: Dismiss Appeal in 191/07 Question answered in affirmative in 425/10
THE SUPREME COURT
Appeal No. 191/2007
Denham J.
Hardiman J.
Fennelly J.
Macken J.
Finnegan J.
BETWEEN
JACK CANTY
align=”right”>APPELLANT
AND
PRIVATE RESIDENTIAL TENANCIES BOARD
RESPONDENT
AND
DAVID CONNOLLY
NOTICE PARTY/RESPONDENT
Appeal No. 425 / 2010
CASE STATED
IN THE MATTER OF THE RESIDENTIAL TENANCIES ACT, 2004
BETWEEN
JACK CANTY
align=”right”>APPELLANT
AND
DAVID CONNOLLY
RESPONDENT
JUDGMENT of Mr. Justice Fennelly delivered the 19th day of July 2011.
1. This judgment deals with two cases brought before the Court by Mr Jack Canty. In the first, he appeals against a decision of the High Court (McKechnie J) refusing him judicial review in relation to a decision of the respondent (the Private Residential Tenancies Board, hereinafter “the Board”) to issue summonses prosecuting him for breaches of the terms of a direction of the Board. The second case is a case stated from the High Court (de Valera J) on an appeal taken by Mr Canty to the Circuit Court. The question is whether the court may deal with an interim direction of the Board after a final Determination Order has been made.
2. The above case no 190/07 is an appeal against a judgment of McKechnie J in the High Court, of 27th April 2007, in which he refused the appellant’s application for judicial review, principally in the form of prohibition, seeking to prevent the Board from prosecuting the appellant for offences contrary to the Residential Tenancies Act, 2004 (hereinafter “the 2004 Act”).
3. The factual background to the proceedings is that the appellant was a tenant of a residential property owned by the Notice Party. In three summonses issued on 21st July 2006, the respondent alleges that the appellant had failed to comply with the terms of a Determination Order made on 19th April 2006 under the provisions of the 2004 Act. The appellant advances three grounds in support of his application for judicial review. He also claims that McKechnie J wrongly refused him leave to amend his judicial review statement by the addition of a fourth ground.
4. On 22nd September 2004, the appellant entered into an agreement in writing with the Notice Party whereby he became tenant to the latter of a dwellinghouse at 14, The Orchard, Crosshaven, Co. Cork for the term of six months from 22nd September 2004 to 31st March 2005 at a rent of €700 per month, renewable, at the appellant’s option, for a further period of six months on the same terms and for a further period of twelve months subject to the option of the Notice Party to increase the rent by a specified amount.
5. Early in the tenancy, a dispute broke out between the parties regarding the high level of ESB bills, which was apparently due to a fault in the wiring system. This fault and responsibility for it were acknowledged on behalf of the Notice Party. Nonetheless, disputes became protracted and acrimonious.
6. At this point, it should be noted that the tenancy had not been registered with the respondent as is required by the provisions of the 2004 Act. The Notice Party was advised of the need for this step in March 2005. He obtained a registration form and asked the appellant to sign the form and supply the necessary information, which included his PPS number. The appellant has never supplied that information, although he has been at pains to rely on the failure to register in his proceedings for judicial review. He has offered this Court no explanation for this omission.
7. Both parties referred disputes to the respondent for dispute resolution pursuant to the 2004 Act. The appellant complained that the Notice Party had failed to undertake necessary repairs to the heating system and that he suffered expense and loss of amenity, in particular by having to reduce the area of the dwelling he could afford to heat. The Notice Party served a notice of termination of tenancy. The details of these disputes need not concern us. They were resolved by the respondent in accordance with the statutory procedures.
8. On 5th August 2005, the tenancy was duly registered with the respondent and the appellant was informed of this fact in writing by the respondent.
9. The respondent decided to hear and determine the two disputes together. For that purpose, on 25th August 2005, it gave notice of an adjudication hearing for 12th September 2005. The adjudication hearing in fact took place on 19th October 2005. Its report was dated 26th October 2006. The appellant requested that the respondent appoint a Tribunal to hear the matter de novo. He filed a notice of appeal on 5th December 2005.
10. The respondent constituted a three-person Tenancy Tribunal in accordance with section 102 of the 2004 Act. The Tribunal sat on 27th January and 20th February 2006. The report of the Tribunal deals both with the dispute referred by the appellant and that referred by the Notice Party. In broad terms, the Tribunal accepted that the appellant had grounds for complaint regarding the matter of excessive electricity bills, although, it is fair to say that the legitimacy but not the extent of this complaint had been accepted on behalf of the Notice Party. The Tribunal held that the notice of termination of tenancy served by the Notice Party was not valid. At the heart of the matter was that, as the dispute continued, rent was mounting up and not being paid. As of February 2006, about €7,700 was outstanding. The appellant had offered to pay €300 per month, based on his own assessment of his loss of amenity. He claimed that he was entitled to withhold rent because of what he called the “retaliatory nature of the notice of termination.”
11. In the event, the Tribunal decided that it would make an interim direction in accordance with section 117 of the 2004 Act “in respect of rent.” It ruled that its interim direction “might not necessarily be the relief provided for in the final determination in the matter.” The interim direction, given on 15th February 2006, was as follows:
“INTERIM DIRECTION
1. Mr Canty [the appellant] shall forthwith pay to Mr Connolly [the Notice Party] the sum of €3,300 being part of the rent outstanding.
2. Mr Canty shall pay to Mr Connolly within 30 days from the date of this hearing the sum of €2,200 in respect of outstanding rent less the agreed deduction of €475 in respect of electricity consumption.
3. Mr Canty shall pay to Mr Connolly the further sum of €2,400, being the balance of the arrears within 60 days from the date of this hearing.”
12. The Tribunal reconvened on 22nd February 2006. It made its final determination in its report of 13th April 2006. It determined that the appellant was entitled to a total sum of €1,000 in respect of loss of amenity as a result of the defective heating system. That was to be “set off against the sum of €475 already agreed to be paid by the respondent Landlord in respect of ESB bills, with the balance of €525 to be set off against the arrears of rent due by the Applicant Tenant.” It ordered the appellant to pay all arrears of rent, “amounting to the sum of €8,400 at the date of the resumed hearing (being twelve months at €700 per month.” It added that further sums were to be “payable as they fall due.”
13. The appellant did not appeal against this final order, which, accordingly became binding on the parties pursuant to section 123(2) of the 2004 Act. The Act contains no corresponding provision in respect of an interim direction.
14. On 11th April 2006, the Notice Party applied to the Circuit Court in Cork, pursuant to section 124 of the 2004 Act, for an order directing the appellant to comply with the interim direction of 15th February. That was, of course, prior to the issue by the Tribunal of its final determination. The appellant contested the jurisdiction of the Circuit Court.
15. The Circuit Court required the appellant to lodge in court the sum, initially of €5,000, later reduced to €3,250.
16. On 19th July 2006, the Circuit Court made an order in the following terms:
1. That the Respondent [the appellant] be directed to comply with the terms of the Determination made by the Private Residential Tenancies Board on the 15th day of February 2006, allow for deduction of €3250.00 lodged in court by the Respondent on the 18th day of July 2006.
2. That the Respondent be directed to furnish his Personal Public Service Number to the Applicant [the Notice Party].
3. That the sum of €3250.00 lodged in Court on the 18th day of July 2006 be paid out to [the Notice Party] via his Solicitors.
4. That the Notice Party do recover the costs of these proceedings from the Respondent when taxed and ascertained.
17. In effect, the appellant had been required to lodge the sum of €3250 in court but that sum was paid out to the Notice Party.
18. The appellant did not comply with the interim direction. Nor did he comply with the final determination. He did, however, pay into court the sum already mentioned together with a further sum required by order of the High Court. These sums amounting to some €5000 have been paid out to the Notice Party. Otherwise, the appellant has not paid any rent. Nor has he provided his P.P.S. number.
On 25 August 2006, solicitors representing the Board wrote to the appellant threatening that proceedings would be issued against him pursuant to section 126 of the 2004 Act based on his failure to comply with the final Determination Order made by the respondent on 19th April 2006. Three summonses were issued on 21st July 2006 made returnable to Cork District Court on 16th October 2006. The summonses were served on the appellants on 29th August 2006. Those summonses allege, respectively, that the appellant had failed to comply with the terms of the Determination Order, within the respective times allowed in, by:
• Failing to pay the sum of €8,400 being arrears of rent at a rate of €700 per month for the period March 2005 to February 2006;
• Failing to furnish the respondent with his PPS number;
• Failing to pay the Notice Party rent at the rate of €700 per month from March 2006.
19. The appellant appealed to the High Court against the decision of the Circuit Court of 19th July 2006. In effect, he claims that the interim direction could no longer be enforced once a final determination had been made. After the hearing of the case in the High Court and while judgement had been reserved by de Valera J, the appellant applied to the learned judge and he agreed that he would state a case to this court in the form of the following question:
“May a private landlord proceed under s, 124 of the Residential Tenancies Act 2004 to Enforce a s. 117 [ of the same Act] ‘ interim direction’ after a s. 121(1)(c) [of the same Act] ‘ final determination’ has been issued by the (Private Residential Tenancies) Board notwithstanding the provision(s) of s.189 [of the same Act]?”
20. That question is the subject of the second matter dealt with in this judgment (Appeal No. 425/10).
Judicial Review Proceedings
21. On 1st November 2006, the appellant applied for leave to apply for judicial review by way of certiorari of the decision of the Board to prosecute him, and prohibition and/or an injunction to restrain the Board from proceeding with the prosecution. The grounds are expressed in diffuse language and employ unfamiliar American legal jargon. However, McKechnie J discerned the following three central points of complaint, even if it is not clear that the grounds, particularly the second one set out below, are clearly put forward in the Statement to Ground Judicial Review. In essence, the grounds are as follows:
1. The report of the Board which contains its Determination Order is required by section 103(7) of the Act to be a “decision of a majority of the members of the Tribunal,” but was signed by only one;
2. The tenancy had not been registered at the date of the referral of the disputes to the respondent: for that reason the Board had no jurisdiction to deal with the disputes;
3. The Board did not have power to institute criminal proceedings until it had taken the appropriate civil proceedings to enforce its orders.
22. In addition, the appellant claims that McKechnie J wrongfully refused to permit him to amend his grounds so as to include an additional complaint, namely that the seal of the Board had not been properly authenticated pursuant to section 173 of the 2004 Act.
23. It was decided in the High Court that the Board and the Notice Party should be put on notice of the application for leave. A first hearing for that purpose was held on 23rd February 2007. While no order was made up, it is agreed that McKechnie J on that date decided to grant leave on the three grounds mentioned above. Accordingly, the full hearing took place on 27th April 2007. At that stage the court had the benefit of affidavits sworn by the two members, other than the chairperson, who had sat on the Tenancy Tribunal of the Board. They were to the effect that the decision of the Tribunal was unanimous.
24. McKechnie J rejected all three grounds of judicial review. It is unnecessary to repeat his reasons. They are largely replicated in what I have to say below.
First Point; a majority decision
25. The Tribunal’s determination is contained in the form of a full report dated 19th April 2006. The report recounts in some detail the proceedings which had taken place and the Tribunal’s own conclusions. It provides places for the signatures of three persons above their printed names: Aideen Hayden, Anne Colley and Conn Murray. In fact, only Aideen Hayden signed as “Chair.” The whole of the appellant’s case revolves around this. He treats the decision as being that of only the chairperson. He says that the evidence of the other two members was not contemporaneous.
26. In my view, this point is completely without merit. The report and findings of the Tribunal are expressed throughout as being the views of the Tribunal. No reasonable person would read it as comprising the view only of the person who signed it. Section 103(7) does not require any particular formality: merely that the decision be by majority. McKechnie J rightly observed that it was “not a signature, or seal or authorisation provision.” The High Court knew from the unchallenged evidence of the other two members that the decision was, in fact, unanimous.
27. The appellant seeks to invest the simple requirement that the decision be by majority with a need for formal expression, which is entirely absent from the section. I reject this ground of appeal.
Second Point: the tenancy was not registered
28. On the facts, the tenancy was not registered until 5th August 2005. It was not, therefore, registered when the two disputes were referred to the respondent. The appellant says that it follows that the respondent had no jurisdiction to deal with the disputes. This point turns essentially on section 83 of the 2004 Act, which provides:
(1) Subject to subsection (3), the Board shall not—
(a) deal initially with a dispute referred to it under this Part, or
(b) allow any other procedure under this Part to be followed in relation to a dispute referred to it under this Part,
if the fee of the specified amount prescribed by rules under section 109 in relation to that initial dealing or the following of that procedure has not been paid to it.
(2) Subject to subsection (3), the Board shall not deal with a dispute in relation to a tenancy referred to it under this Part by the landlord of the dwelling concerned if the tenancy is not registered under Part 7.
(3) The Board may, in the case of a default in payment of a particular fee or registration under Part 7 of a particular tenancy, notify the person or persons concerned of the default and afford the person or persons concerned a reasonable opportunity to rectify the matter; if the matter is rectified within a reasonable time the Board shall, subject to this Part, deal with the dispute or permit the other procedure to be followed in relation to it, as the case may be.
29. As already mentioned, the Notice Party obtained a registration form in early March 2005. He delivered it to the appellant so that he might sign it and supply the necessary information, which included his PPS number. The appellant ignored this and other requests, saying at most that the matter “was under advisement.” The appellant, from as early as 22nd March 2005, was writing to the respondent saying that he wished his landlord “to be accountable for violating the law.” He was at pains, in the same letter, to insist that registration was not a condition of his own access to the Board’s processes. In this he was technically correct. It is clear, however, that he declined to co-operate in having the tenancy registered.
30. McKechnie J rightly took the view that this section, in particular, subsection 2, “does not declare an application received prior to the registration of the tenancy to be a void one.” He found subsection 3 to be of particular assistance. It showed that the respondent has “power to deal in a pragmatic way with an application which precedes the registration of a tenancy.” I agree. That provision permits the Board to notify an applicant of any default in registration for the purpose, expressly stated, of affording the person concerned “an opportunity to rectify the matter.” It also allows a reasonable time for that purpose. Once the matter has been attended to, the Board is obliged—the word is “shall”—to deal with the dispute. This section does not deprive the Board of jurisdiction to receive a dispute merely because the tenancy has not been registered. Certainly, it may not deal with it until the matter is attended to. But that is all.
31. On the facts, the Board did not take any substantive step to deal with the disputes until after 5th August 2006, when the tenancy had been registered. I would add that it comes oddly from the appellant to make the point about absence of registration in view of his own patent failure to co-operate in the process, even to the extent of failing to provide his own PPS number.
32. The appellant makes an additional point based on rule 4 of the “Dispute Procedure Rules” of the Board. That Rule reads:
“The Board shall not accept a dispute referral from a landlord of a tenancy that is not registered with the Board.”
33. Section 109(1) of the 2004 Act provides:
“The procedure to be followed under this Part in relation to a dispute shall, subject to this Part, be such as shall be determined by the Board by rules made by it with the consent of the Minister.”
34. The procedural rules, including Rule 4, were adopted under this provision. Even if the law were not so, in any event, the rules are expressly made “subject to the provisions of the Act.” (Rule 1) There could be no question of a procedural rule contradicting the terms of section 83 of the Act by laying down an additional rule affecting the jurisdiction of the Board. The appellant relies on the definition of an enactment in section 2 of the Interpretation Act 2005 and, in particular, on section 20 of that Act, which provides that a definition in an enactment is to apply both to that enactment and in any Act under which the enactment was made. I cannot see how that provision can affect the relationship between Rule 4 and section 83 of the 2004 Act.
35. It is impossible to resist the conclusion that the appellant used the failure in registration as a means of obstructing the Notice Party’s access to the processes of the Board and not for any bona fide purpose.
36. I would make one further observation regarding the first two points, even though it does not figure in the High Court judgment. Neither of these points provides any basis for preventing a criminal prosecution. They relate to the evidence to be adduced at the hearing of the prosecution. If there is some imperfection in the evidence, that is a matter for the trial and not for judicial review. However, McKechnie J has dealt with the points on their merits and I have done the same.
The third point: no criminal proceedings prior to civil enforcement.
37. The appellant makes what McKechnie J treated as his most substantive point, namely that the respondent did not have power to institute criminal proceedings prior to exhaustion of the civil remedies provided by the Act. No civil proceedings have been taken to enforce the final determination order. The appellant expresses this complaint in various ways, including that the respondent violated its obligation to act judicially in consideration of the overall intent of the Oireachtas.
38. Section 124(1) of the 2004 Act provides:
“(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the Circuit Court for an order under subsection (2).”
39. Section 126 provides:
(1) A person who fails to comply with one or more terms of a determination order is guilty of an offence.
(2) Subsection (1) has effect notwithstanding the means provided under section 124 for enforcement of a determination order.
(3) A person convicted of an offence under this section shall not be sentenced to any term of imprisonment in respect of that offence if he or she shows that the failure to comply with the term or terms concerned was due to his or her limited financial means.
40. The appellant relied in the High Court on what McKechnie J called a “principle of escalating remedies…” There should be no criminal proceedings until the civil route has been followed. The appellant here also relies on one of the Rules, namely Rule 21:
“If there is non-compliance with a determination order of the Board and a party brings that fact to the attention of the Board and requests the Board to pursue the enforcement of its determination order, the Board must within 7 days of satisfying itself that the alleged non-compliance has occurred, apply to the Circuit Court for an order under section 124(2) of the Act.”
41. The first objection to reliance on this provision has already been made with regard to Rule 4. This purely procedural rule could not affect or restrict the power of the Board to bring a prosecution pursuant to the express power conferred by section 126. The second is that, even in its own terms, it does not apply. It presupposes a request from one of the interested parties, here presumably the Notice Party. There is no evidence that any request was made to the Board as envisaged by the Rule.
42. Finally, and decisively, section 126 states, in the clearest terms, that the power it confers “has effect notwithstanding the means provided under section 124 for enforcement of a determination order.” As McKechnie J put it, section 126(2) “can only be read as meaning that the taking of proceedings by way of civil remedy is not a pre-condition to the issue of summonses.”
43. The Board submits that, furthermore, it has never been the law that one must exhaust civil remedies prior to initiation of criminal proceedings. The case of Dillon v Dunne’s Stores Ltd., [1966] IR 397 arose in the converse circumstances of an attempt to stay civil proceedings pending a criminal trial. However, the following dictum of O’Dalaigh C.J. is instructive: “As the plaintiff could not have had an order to postpone the criminal proceedings until the determination of her civil action, equally the hearing of the civil action cannot be required to await the conclusion of the criminal proceedings…”
44. I would reject this third point as equally without merit.
45. I am also satisfied that McKechnie J was right to refuse the application to amend the grounds for judicial review by the addition of a fourth ground. That was to the effect that the seal of the Board had not been properly authenticated in accordance with the provisions of section 173 of the 2004 Act. The appellant points to section 121(1), which requires that “the seal of the Board shall be affixed to a determination order.” That provision is:
46. The seal of the Board shall be authenticated by the signature of—
“(a) the chairperson of the Board or another member of the Board authorised by the Board to act in that behalf, and
(b) the Director or a member of the staff of the Board authorised by the Board to act in that behalf.
(3) Judicial notice shall be taken of the seal of the Board and every document purporting to be an instrument made by the Board and to be sealed with the seal of the Board (purporting to be authenticated in accordance with subsection (2)) shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown.”
47. I will assume, without expressing any opinion, that the seal of the Board has not been authenticated in accordance with this section. The respondent says that it has. I cannot see that it could make the slightest difference to the power of the Board to institute the proceedings pursuant to section 126. If some piece of evidence required authentication by the seal of the Board, it would be open to the appellant to object to its admissibility at the hearing of the prosecution. The fact that, at this point in time, a determination order has not been duly sealed does not mean that it cannot be sealed at a future date. Furthermore, as was argued at the hearing, section 173 may be regarded as a provision merely providing for one method of proof. Others may be offered. My essential ground for refusing the appeal on this point is that it provides no basis in law for preventing the prosecution.
48. I would uphold and affirm the decision of McKechnie J in its entirety. The appellant has produced no credible or arguable ground to challenge or cast doubt on the decision of the Board to issue the three summonses against the appellant.
49. I turn then to consider the case stated. The essential situation is quite simple. The Respondent, on 15th February gave an interim direction pursuant to section 117 of the 2004 Act requiring the appellant to make certain payments in respect of rent and to provide his PPS number. The direction made it clear, as was consistent with its nature as an interim direction, and as is required by section 117(2), that the interim direction might not necessarily be the relief provided in the final determination. The Tribunal then continued with its consideration of the matter and on 19th April 2006 made a final Determination Order.
50. The appellant wrote to the Circuit Court on 10th May 2006 contending that the order relied upon by the Notice Party had been rendered moot by the final Determination Order of 19th April 2006.
51. Essentially, this is a question of jurisdiction. Does the interim direction automatically merge in the final determination and lose its legal effect? One can see immediately that there is a structural argument in favour of this view. If the appellant were to pay the outstanding sums in respect of rent provided for in the interim direction, it would be quite unjust and obviously wrong if he were to be required to pay the same amounts a second time on foot of a final determination.
52. However, it is necessary to consider the relevant sections. Key among these is section 121(1) which defines the term “determination order.” That definition includes a “determination of the Tribunal” (paragraph (c)) and a direction given by a Tribunal pursuant to section 117. I set it out in full:
“Each of the following—
(a) an agreement mentioned in a report of a mediator under section 95 (4),
(b) a determination mentioned in a report of an adjudicator under section 99,
(c) a determination of the Tribunal notified to the Board under section 108,
(d) a direction given by an adjudicator or the Tribunal under section 82 (5) or 117,
shall be the subject of a written record (in this Act referred to as a “determination order”) prepared by the Board and issued by it to the parties concerned.”
53. In his written submissions to this Court, the appellant says that what he calls the pivotal point is the distinction between an “interim nature direction” included in section 121(1)(d) by reference to section 117 and a “post-hearing determination” included in 121(1)(c). He points out that under section 123(2) the latter, but not the former, can “become binding on the parties concerned” after the expiry of the relevant period. He reasons from this that an interim direction given under section 117 can never serve as the basis for private enforcement under section 124.
54. This argument, therefore, depends on the words of section 124, which is the enforcement provision. Section 124(1) provides:
“(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the Circuit Court for an order under subsection (2).”
55. The appellant contests the inclusion of the interim direction within the definition of “determination order.” He regards it as inappropriate to include a step which is essentially short-term and temporary within the definition of a final order which is capable of enforcement by the court.
56. The appellant cannot, however, escape the explicit statutory definition. It includes an interim direction which is, therefore, necessarily enforceable by a Circuit Court order. Indeed, there would be little point in it, if it could not be given legal force and effect. The very purpose of the interim direction in the present case was to provide a remedy in the form of continuing payment of rent while the rest of the dispute was being resolved.
57. Section 117 enables a Tribunal to give interim directions of many types in favour of either landlord or tenant. Section 115(2) gives some idea of the breadth of declarations or directions which may be given by a Tribunal. Depending on their nature and the circumstances, many of these might well form the subject matter of interim directions. They include, for example directions: “that a specified amount of rent or other charge be paid…” (a); “as to the return or payment…of a deposit” (c); “that a dwelling be quitted by a specified date” (e); “as to the right to return to, or continue in occupation…” (g).
58. The matter is expressed thus in Landlord and Tenant Law; The Residential Sector by Una Cassidy and Jennifer Ring (Round Hall Press, Dublin 2010), at 9-94:
“In addition to making orders which incorporate a final determination, adjudicators and tenancy tribunals may also make interim directions to have effect during the course of the dispute resolution process. The interim relief granted does not necessarily have to be or reflect the relief granted in the final determination of the matter.”
59. In other words, an interim direction may deal with a matter which it becomes unnecessary to include in a final order. For example, an interim direction that the tenant continue to pay rent or that a landlord carry out specified repairs may not necessarily be included in the final order. There is also force in the submission of the Notice Party that the purpose of interim directions is to provide financial relief to persons such as he, who suffers ongoing financial loss and associated hardship during the continuance of proceedings. There is no reason in law or logic why the beneficiary of such a direction should not be able to enforce it even after the final determination order is made.
60. There is no provision in the Act to the effect sought by the appellant, which would merge the interim direction so that it would disappear and lose any value once a final determination was made.
61. An interim direction and a final determination order are alike enforceable by the Circuit Court in accordance with section 124. Provided the Court has power to ensure that no injustice is done, there is no intrinsic injustice in such a system. It may well be, of course, that there is overlap between an interim and a final direction. Clearly, a court will not make an order duplicating enforcement. Section 124 provides that “the Circuit Court shall make an order directing the party concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms…” The court will necessarily inquire into compliance with the respective directions and orders and make such order as is just and appropriate.
62. The appellant also submitted that the power to make or enforce interim directions lies only with the Board pursuant to section 189. That section applies “if the circumstances giving rise to or involving the dispute are such that, were proceedings in the Circuit Court to be brought in relation to the dispute, it would be appropriate to apply to that court for interim or interlocutory relief in the matter.” In that situation, section 189(3) provides:
“On being requested by the person (the “referrer”) who has referred or is referring a dispute to it to do so, the Board may apply, on the referrer’s behalf, to the Circuit Court for such interim or interlocutory relief in the matter as the Board considers appropriate.”
63. Section 189 has nothing to do with the enforcement of determination orders, whether in the form of an interim direction or otherwise. As is clear from the wording of section 189(3) it applies, when “a person…has referred or is referring a dispute to [the Board].” The fact that it is not intended to deal with enforcement of determination orders already made is shown by the language of section 189(4) which permits the Board, when deciding whether to accede to a request, to have regard to “the merits, as they appear to it, of the referrer’s contentions that will be dealt with by an adjudicator or the Tribunal…” (emphasis added). The use of the future tense in this provision shows that it is intended to apply to pending disputes.
64. The authors, Una Cassidy and Jennifer Ring, in their work cited above, provide useful examples of the potential value of the provision. At Paragraph 9-112, they explain that:
“A case of serious antisocial behaviour is an example of where it may be appropriate to make an application for relief under s.189 of the RTA 2004. Another example is where there has been a threatened or an actual unlawful eviction of a tenant from a dwelling.”
65. They go on to instance a case where it has not been possible to set up a Tribunal with less than 21 days notice and there is need for urgent relief. The authors cite four instances of cases in which orders were made by different judges of the Circuit Court restraining landlords from interfering with the tenant’s peaceful occupation pending resolution of the dispute. ( see paragraphs 9-112; 9-114; 9-116; 9-117)
66. The appellant confuses the reference to “interim or interlocutory relief” in section 189(3) with interim directions given by an adjudicator or a Tribunal pursuant to section 117. The latter is a form of interim relief within the context of resolution of a dispute under the statutory procedures. It is enforceable pursuant to section 124, not section 189.
67. The appellant maintains that the effect of section 189 is that no private party may seek enforcement of an interim direction given under section 117. The point is patently without any merit. Section 124 enables either party to a dispute or the Board to apply to the Circuit Court for enforcement. Nothing in section 189 contradicts or qualifies that provision. Even on its own terms, section 189 would apply only if the landlord Notice Party had requested the Board to apply, which did not happen.
68. I am satisfied that the question in the case stated should be answered in the affirmative.
69. Although this judgment deals with only two of the various proceedings taken by the appellant in respect of the tenancy he had from the Notice Party, I think it right to say that none of the legal points were meritorious to the slightest degree. Regrettably, these proceedings and others have delayed the final resolution of disputes under the 2004 Act, which is intended to provide quick and effective remedies. One can only hope that all matters can be resolved without further delay.
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Dinnegan v. Ryan [2002] IEHC 55 (13 May 2002)
THE HIGH COURT
On Circuit
Record No. 2001 304CA
BETWEEN
James Dinnegan and Teresa Dinnegan
Plaintiffs
AND
Eugene Ryan and Mary Ryan
Defendants
Judgment delivered the 13th day of May, 2002 by Murray, J.
1. This is an appeal is an appeal by way of rehearing from the judgment and Order of the Circuit Court in which the Plaintiffs were awarded the sum of IR£20,000 damages for breach of contract and slander. No apportionment of damages was made for the separate causes of action.
2. In these proceedings the Plaintiffs claim that they had an agreement with the Defendant’s whereby the latter would provide light refreshments for a small post-wedding reception at their public house on St. Stephen’s Day, 1998. It is alleged that when the Plaintiffs and their guests arrived at the public house the Defendants refused to serve drinks to the wedding party, in particular the Plaintiffs, or to provide them with any food. On the contrary it is alleged that the First Named Defendant in refusing to serve them asked them to leave in circumstances and in a manner which amounted to defamation of the Plaintiffs characters. Accordingly they claim damages firstly, for breach of contract and secondly, for slander. The Defendants on the other hand deny that there was every any agreement at any time to provide refreshments for the wedding party. It is accepted that the wedding party and in particular the Plaintiffs were asked to leave their premises on St. Stephen’s night when they arrived there. According to the Defendants this was because there being no agreement to provide any kind of wedding reception there was no food available to be served to them. Also, the public house was crowded to capacity and the First Named Defendant did not wish to get involved in any argument with the Plaintiff the premises over the alleged failure to provide the food and beverages for the wedding party.
3. Thus, it is not in issue that the Plaintiffs and their wedding guests arrived at the Defendant’s public house at approximately 6.00pm on the 26th December. The Plaintiffs were informed that neither they nor guests would be served food or drink. They were asked to leave and they left.
4. There are two basic issues. The first is whether there was an agreement between the Plaintiff and the Defendants concerning the provision of food and drink for a post-wedding get together of the Plaintiffs and their guests. The second issue is whether the words alleged to have been spoken by the first named Defendant and his conduct in removing them from the premises in the presence of other customers in the public house at the time, constituted an actionable slander of the Plaintiffs.
5. Turning to the first issue, I do not think it is necessary to recall all of the evidence but to concentrate on the essential aspects of it. The background facts are not in issue. Prior to their marriage the Plaintiffs had been living together for quite a number of years. They had three children, the youngest of which was four and the eldest fourteen. Sometime in 1998 they decided to solemnise their relationship by getting married according to the rites of the Catholic Church and arrange for their wedding to take place on St. Stephens Day, December 26th, 1998. At that time the first named Plaintiff was unemployed. The Defendants are the proprietors of an extensive public house premises known as The Downs Inn a few miles outside Mullingar.
6. In his evidence the first named Plaintiff, Mr James Dinnegan said that he had been in The Downs Inn on a number of occasions prior to the incident in question. His father drank their regularly. He knew the proprietor, Mr Ryan. He went in there on a day around the end of November, early December at about 11.30am to make arrangements for a post-wedding reception. He told Mr Ryan about his forthcoming marriage on St. Stephen’s Day and that he wished to bring his guests to The Downs Inn after the wedding for a small reception consisting of sandwiches and cocktail sausages and drinks. Mr Dinnegan said Mr Ryan at first expressed some concern about a 21st birthday party which he would be having that evening but this he said was resolved when he stated that the wedding party would arrive between 6 and 6.30pm and could leave at approximately 9.00pm before the 21st birthday party got under way. He told Mr Ryan that there would be about twenty persons in the party possibly thirty but not more than that. Mr Dinnegan agreed that no overall price for the provision of food was agreed. He explained this by saying since that it was only going to consist of sandwiches and cocktail sausages he knew it could not amount to too much. The drinks would be bought from the bar. He denied that he and the wedding party turned up at the public house without prior arrangements or that they had chosen the Downs Inn on the day because of an electricity blackout in Mullingar town. His main concern appears to have been to ensure that there would be some food available to his wedding party when they arrived after the wedding. As regards Mr Dinnegan’s visit to the pub to make these arrangement, Mrs Dinnegan gave evidence that they were on their way to visit a brother-in-law in hospital and they took the opportunity to stop at The Downs Inn and her husband went in to make the arrangements while she waited in the car. This took about fifteen or twenty minutes.
7. St. Stephen’s Day turned out to be a very stormy windy day as a result of which electricity wires were blown down and much if not of all Mullingar town was without power. This included the Catholic Church in which the wedding took place that afternoon as a result of which it had to be conducted in candlelight. The power cut gave rise to concern as to whether The Downs Inn was affected by the power cut and Mr Dinnegan’s sister rang the public house to check the position. A female who answered the phone confirmed that they had power.
8. The Plaintiffs had invited a range of friends and relations to the wedding some of which had come from England and other parts of the country.
9. After the wedding ceremony the wedding party left for The Downs Inn. Inevitably some arrived before others although most arrived within a short time of one another. So far as a first named Plaintiff is concerned he came in from the car park with two uncles and a brother. Four drinks were ordered. He said a female behind the bar started to pour the drinks but that the first named Defendant, Mr Ryan came out to the lounge and told him that he did not want Mr Dinnegan there, that he was not being served and he wanted him to leave. According to Mr Dinnegan when he came out from behind the bar Mr Ryan waved his hands repeatedly telling him to “get out, I don’t want you here.” Mr Dinnegan says he was quite shocked, could not believe that this could happen, particularly just at that point on his wedding day without any notice. He felt completely humiliated. His own wedding party had begun to gather at this stage. The lounge was fairly busy and many people who knew him, as he lived in the town itself, could see what was happening. He tried to talk to Mr Ryan but there was no talking to him. After initially taking issue with Mr Ryan he felt so humiliated that he just wanted to get out. People were looking at them and he wished to avoid further embarrassment. They went home to his mother’s house. He was very upset but his wife particularly so and they felt too upset to go anywhere else. They had a few drinks in his mother’s house. In the course of his evidence Mr Dinnegan stated that when he walked into the pub he could see sandwiches laid out on trays in a small function room. At this point I would note that no other member of party who gave evidence observed sandwiches laid out on trays and whatever about the rest of the evidence of Mr Dinnegan I am not satisfied, on the balance of probabilities, that he did infact see sandwiches laid out on trays. He may well have been attempting to gild the lily in this aspect of his evidence. According to Mr Dinnegan he then telephoned Mr Ryan twice that evening and twice the next day but Mr Ryan refused to come to the phone. Eventually he went to his solicitor which in due course led to the initiation of these proceedings.
10. Mrs Teresa Dinnegan, the second named Defendant, explained how she was anxious that the wedding day would go well with a small reception for friends and relations after the wedding. “All we wanted was a few friends and a few sandwiches” When she went to The Downs Inn after the wedding, she explained how she waited for her mother-in-law and went in to the public house not long after her husband. Her evidence was that all she could hear was “get out, get out, I don’t want you here.” She felt ashamed and embarrassed. She said that she literally turned around and walked out shocked and humiliated. She felt ashamed in front of her friends. She could have had food for them in their house afterwards but they had decided to entertain them in The Downs Inn. Afterwards she felt too upset to go anywhere else. She was in tears. So upset was she that she subsequently went to her father’s grave for solace. Mr Dinnegan Snr. gave evidence broadly speaking in support of the evidence of his son and also how he had known Mr Ryan, the First Named Defendant for many years. He was a regular customer of the pub particularly on Saturday nights and neither he nor any member of his family had any history of trouble or difficulty with Mr Ryan.
11. Mr McGregor was the photographer engaged by the Plaintiffs to take photographs of their wedding and he was also a friend. When he arrived at the Downs Inn he could see members of the wedding party coming out. He stated that he could not believe what was happening. He had been told two or three weeks before the wedding that the party would be going to the Downs Inn afterwards and that he would be required to take photographs there as well as at the church. He had been told by the Plaintiffs that some food would be available in the pub. He gave evidence that everybody was deeply upset by what had happened and nobody had the heart to go anywhere else. Mr Gerard Dolan, a brother-in-law of the Second Named Plaintiff, was one of the first to arrive with his wife and Mr Martin McDonald. They had never been to the Downs Inn before. They had no difficulty in ordering and being served a drink. He said there was “a nice crowd” but not a large crowd in the pub. They ordered and were served a second drink. He heard shouting and saw a man telling members of the party including the First Named Plaintiff to “get out – get out.” He was not known to
12. Mr Ryan or Mr Ryan did not know him. However, when the rest of the party were not allowed stay, they left. Mr Martin McDonald also gave evidence of being with the last mentioned witness and being served two rounds of drink. At one point he saw a female behind the bar saying something to Mr Dinnegan, the First Named Plaintiff which he thought was to the effect that she could not serve him. There seemed to be a bit of confusion. Then he saw the First Named Defendant, Mr Ryan, in an archway who told Mr Dinnegan and party that they were not being served. Mr Ryan said “I don’t want you here, I want you to leave.” Mr Ryan was taking control, he said. He also stated that when he ordered the first round, he did so from a barman who appeared to look to Mr Ryan, as if he was checking whether he should serve the drink or not. In any event he was served. In cross-examination it was put to Mr McDonald that in fact the barman at that time had gone off duty and that Mr Ryan was upstairs having dinner. Mr Patrick Dinnegan, a brother of the First Named Plaintiff and Mr William McDonald, a brother of the Second Named Plaintiff also gave evidence, broadly speaking consistent with the case being made by the Plaintiffs.
13. Ms Rachel Greville was the first witness called on behalf of the Defendants. On the date in question she was a barmaid working in the Downs Inn. She had been working there for six years. She has since left the employment of the Defendants. On the occasion in question, she had just relieved one of the barmen and had no one behind the counter to assist her. There were sixty to eighty people in the bar, which was essentially a family run pub. When she saw the group arriving, maybe sixteen people, she spoke to the Plaintiff. She asked him to come down to a particular part of the counter as she wished to speak him for a second. She explained to him that she was working on her own and was too busy and would not be able to serve him. She called him down the counter as she did not wish to embarrass him in front of other people. She stated in evidence that St. Stephens Day was one of the busiest days in the year and she was on her own in the bar. Normally there would a lull between 6 and 9pm but this day it was different. The Plaintiff asked her was she refusing to serve them because of who they were. They wanted to know why. They seemed shocked and wondered why they were being refused. This conversation lasted six or seven minutes. There were people waiting to be served. Mr Ryan was upstairs having his dinner. She took the decision not to serve because there were too many people in the pub. She did not consult Mr. Ryan. It was Mr Ryan’s son who called Mr Ryan down to the bar. She saw Mr Ryan talking to the Plaintiff Mr Dinnegan and other men that were with them. She did not hear anything. She heard no shouting, no raised voices. She had come in and told the barman to go on his break and took over from him. There was never any sign of an argument taking place. She did not hear anything of significance.
14. Mr Eugene Ryan, the First Named Defendant, said that Mr and Mrs Dinnegan were completely wrong in claiming that there was an agreement to providing food for their wedding party on the evening in question. He had only one wedding in seven years in the public house. He had the odd 21st Birthday party, anniversary parties and the like.
15. St. Stephens Day, March 17th and 31st December are traditionally very busy and they take no booking for those occasions. He has a diary of bookings. It is a diary for noting in particular band bookings. According to Mr Ryan it became something of a shock to him to see the members of the wedding party arriving to his premises on the evening in question. The public house had a capacity for 100 people. He thought it was acceptable for his barmaid to decide that there was so many there that she would not serve any other arrivals. He did however agree that he had never known a pub to put up a “full-up” sign.
16. He had told Mr Dinnegan that he had no wedding booked; that there was nothing in the book for December 26th. There was no “hassle”. The conversation went on for 24-25 minutes. Mr Dinnegan was getting a bit annoyed. He said to Mr Dinnegan would you ever leave please. Mr Dinnegan and his party left the premises. He received no phone calls that night. Mr Ryan in evidence acknowledged that a couple of weeks prior to December 26th there had been an incident in the pub involving a relation of the first named Plaintiff, who had got sick on the premises. He said this had nothing to do with the events in the pub on December, 26th.
17. Ms Ryan, the First Named Defendant’s daughter gave evidence consistent with that of her father. If there was a function, either she or one of the family would make the sandwiches. There was no function booked for that night. They never have a function on
18. St. Stephens Night. There was no contract with the Plaintiffs to provide food. When requested to leave the Plaintiffs and their party left calmly and quietly.
Conclusions
19. First of all I would like to dispose of some subsidiary matters. There was a certain amount of controversy, raised mainly with the Plaintiffs in cross-examination, as to whether the Plaintiffs and their wedding party could have come in and out one of the doors of the pub used by them on the grounds that the door was supposed to have been bolted or locked due to the stormy conditions outside. I do not consider that anything turns on this particular issue although if I had to decide it I would accept the account of the Plaintiffs on the balance of probabilities. The second named Plaintiff, Mrs Dinnegan, was also cross-examined on the basis that if contractual arrangements were being made for the wedding reception, she would have gone into the pub with her husband when they were being made and/or would have at least enquired about the cost and also that she would have made arrangements for flowers to be placed in the area where they would get their refreshments. Again I do not think a great deal turns on these matters but it does seem to me entirely logical that she would choose to remain in the car while her husband went into the public house to make what were essentially very simple arrangements for a small get together of the wedding party. It struck me that Mrs Dinnegan had been anxious that the appropriate arrangements would be made for the post-wedding get together with their guests and if she was anxious that her husband would in fact make the necessary arrangements she could only have been reassured by the fact that she was with him in the car when he called into the public house to make them. As regards the flowers her answer was that it never had struck her to have flowers for the occasion. That strikes me as entirely logical and reasonable given the very informal nature of the post-wedding get together.
20. I now turn to the more substantive questions which arise in relation to the first issue concerning the contractual arrangements for the post-wedding reception. Although Mr and Mrs Dinnegan had been living together as man and wife with a young family for quite a number of years it was quite clear from their evidence that the day on which they choose to solemnise their relationship and make their wedding vows was to be for them no less a momentous and important occasion in their personal lives as it would be for many other couples getting married. They carefully made the church arrangements for the wedding, engaged a photographer, invited relations and friends not only from Mullingar but from elsewhere in the country and from England. Mr Dinnegan was unemployed at the time and the celebrations which were going to take place after the wedding ceremony were to be of a relatively modest nature. This did not mean that it was in any way less important for them to have a place to bring their relations and friends where they could provide them with some food and drinks to celebrate the happy occasion in relaxed and friendly surroundings. I am quite satisfied that they were telling the truth when they said they decided upon the Defendants public house as the venue for that event and that Mr Dinnegan went there and entered into the specific arrangement, outlined in his evidence, with the first named Defendant, Mr Ryan. I accept fully the evidence of Mrs Dinnegan when she described how they stopped at the public house one morning at 11.30am for the specific purpose of
21. Mr Dinnegan going into make the arrangements with Mr Ryan. I do not accept at all the suggestion, which was made at one point, that the Plaintiffs only chose to go to the Downs Inn after the wedding when they found that all or most of Mullingar was affected by the blackout but that the Defendants premises were not. If corroboration were required that their plans were made in advance, it is to be found in the evidence of the photographer,
22. Mr McGregor whom I found to be an impressive and truthful witness. A few weeks before the wedding he stated that he had been informed of the arrangements for the wedding party to go to the Downs Inn for food and drink after the wedding ceremony.
23. There was a certain amount of controversy during the course of the evidence as to whether the Defendant Mr Ryan was present in the pub lounge when the wedding party arrived. There was also a conflict in the evidence as to whether the barman was present when the first of Mr Dinnegan’s guests arrived or whether he had departed for a break just before they arrived. Whatever about those issues the defence of the Defendants is clear, namely, no booking was made and that was the reason that no food was available. They were refused drink because, according to Ms Greville, she had decided that there were enough customers in the pub already, and/or according to Mr Ryan he did not wish to entertain or have any argument on his premises about the assertion that he had agreed to provide food for the wedding party. Apart from anything else I find the Defendants’ defence quite inconsistent with some pre-trial correspondence that took place between the parties. As appears from a letter dated 10th July, 2001 and sent by the Plaintiff’s solicitors to the Defendant’s solicitors, Counsel for the Ryans’ had indicated during legal argument on a motion for discovery in the Circuit Court that the Plaintiffs had been refused service on the premises “on the basis that there had been trouble involving another member of their group a number of weeks earlier.” In that letter the Plaintiffs solicitors sought particulars of that particular allegation which they stated was the first time that it had been made. By letter dated the 12th July, 2001, the Solicitors for the Defendants wrote to the Plaintiffs solicitors in answer to the particulars concerning the allegation stated as follows: –
“(a) The person in question is a brother of the first named Plaintiff but the Defendants do not know his name.
(b) The incident in question happened in the evening time and as best the Defendants can recollect sometime between 10 and 11pm. The incident happened to the best of the Defendants recollection approximately 2 to 3 weeks prior to the 26th December, 1998 and accordingly would have happened sometime during the first two weeks of December, 1998.”
24. In a response to a query to give details of the alleged incident the Solicitors for the Defendant said that this was a matter of evidence and within the knowledge of the Plaintiff.
25. One matter which this letter from the Defendant’s solicitor did not contain was any denial or contest of the statement that the reason for refusing the Plaintiffs service in the premises on the occasion in question had been alleged trouble involving another member “of their group a number of weeks earlier.” In fact the whole tenor of the letter, in giving details of the allegations, was to confirm that this was the purported motivation for refusing service to the Plaintiffs. This is wholly inconsistent with the story advanced by Mr Ryan in his evidence in Court. I am not at all satisfied with the evidence of Mr Ryan. I did not find him to be a credible witness. It is quite clear that when he came on the scene, irrespective of the point in time at which this occurred, he had one thing in mind only and that was to clear Mr and Mrs Dinnegan and their friends out of his public house. Indeed this emerges from his own evidence, he did not wish Mr and Mrs Dinnegan to remain on the premises one moment longer than was necessary. He knew it was their wedding day, whatever the merits of the situation, he was going to give them no quarter, not even allow them one drink, or allow them to buy one round of drinks. I do not consider this the normal kind of behaviour that one would expect from the owner of a public house who is dealing with customers coming to his public house on their wedding day even under the apparent misapprehension that they had arranged for some food to be served. Having considered all the evidence and in particular that of Mr Ryan himself, I am satisfied that there was a premeditated and conscious decision on his part to refuse service to Mr and Mrs Dinnegan even though they had made the booking with him. I decline to speculate on what the motivation for his attitude might be. It may or may not have something to do with the alleged earlier incident, although Mr Ryan denied this. I am satisfied that I have not been told the full story behind this matter. The absence of evidence from the barman who was on the premises may be significant. I do not attach any decisive importance to the fact that Mr Dinnegan’s booking was not recorded in Mr Ryan’s book. I am satisfied that not every event or booking was recorded in that book which is primarily, although not exclusively, to record the bookings of the bands which have to be reserved one year in advance. Similarly I do not attach any importance to his statement that he really did not do wedding receptions and only had a wedding reception on one previous occasion. This particular wedding reception was of a very informal and relatively modest scale. The provision of sandwiches and cocktail sausages for twenty or at most thirty people who would buy drinks from the bar from 6.00pm to the latest 9.00pm was very much in line or indeed on a relatively reduced scale to other kinds of functions for which he took bookings such as club events, 21st birthday parties or anniversaries. In any event I accept the Plaintiffs’ evidence that they made the booking with Mr Ryan as truthful and reject his evidence to the contrary.
26. I am not convinced by the evidence by Ms Greville. She described herself as the barmaid, although quite an experienced one, who took it upon herself on the spur of the moment to refuse service to Mr and Mrs Dinnegan and their party. I find it difficult to accept that she would turn away customers, without consulting her employer whom she said was upstairs at the time. This was a family run pub and there was no evidence that she considered consulting with her employer, if she felt under pressure, as to whether he or some other member of the family would be available to help her out behind the bar counter or whether in the circumstances the barman should come back on duty. I am not convinced by her evidence on this matter. Moreover, if this was a straightforward case of refusing service because she was too busy with other customers, she could have done so openly instead of bringing, at least on her evidence, Mr Dinnegan down to a quite part of the counter in order to inform him that she would not serve him. She did say in evidence that she had on one other occasion refused a rugby team whose coach had stopped at the pub when they were busy dealing with a post-GAA match crowd. Whatever happened on that other occasion, I am satisfied that on this particular occasion the Plaintiffs were refused service by reason of a decision of Mr Ryan notwithstanding the agreement which he had with them.
27. Having regard to all the evidence and for the reasons set out above I conclude that the Defendants wrongfully, and in breach of their contract with the Plaintiffs refused to provide the Plaintiffs with any service for them and their wedding group when they arrived at the Defendants premises for their post wedding get together. I will deal with the question of damages after I have addressed the other cause of action, namely slander, relied upon by the Plaintiffs.
Slander
28. As regards the Plaintiffs action for slander, it was accepted by Counsel for the Plaintiffs and properly so, that while at common law libel is always actionable per se, slander generally speaking, is not so actionable and therefore the general rule is that a person defamed by a slander can only succeed on proof of “special damage” arising as the direct, natural and reasonable result of the publication of the words complained of. (see M’Mullan O’ Mulhall and Farrell [1929] 1I.R. 470) There are exceptions to this general rule where slander is actionable per se. However, there is no element in this case which would bring the slander within any of those particular exceptions and obviously this is why Counsel for the Plaintiffs (notwithstanding the pleadings) accepted that it was in incumbent upon the Plaintiffs to prove special damage as well as the slander in order to succeed against the Defendants.
29. While there is an arguable case that the words spoken by the Defendant to and concerning the Plaintiffs, in particular the first named Plaintiff, may have been slanderous given the circumstances and context in which they were spoken, the position in this case is that even if there was a slander it is not actionable in law unless there is proof of special damage. At this point the question to be considered is whether there is proof of any special damage. Counsel for the Plaintiff submitted that one background factor to take into account is the publicity given to the wedding in the local newspapers. This arose from the fact that some special publicity was given to the wedding in a local newspaper due to the fact that it had to take place in the dark by candlelight only on account of the blackout. This meant the wedding was fairly widely known to have taken place. The ejection of Mr Dinnegan from the pub meant that people could well ask themselves is this the sort of fellow they would wish to do business with. Therefore, he might have difficulty cashing a cheque, looking for a job or seeking work as a PVC fitter which was work which he had subsequently undertaken. The special damage did not have to be for a specific amount.
30. Apart from the fact that Mr Dinnegan was unemployed at the time of the alleged slander it was not contended, and could not have been contended, that it was spoken of him concerning his trade or profession. Furthermore, there was no evidence that he had on any occasion been adversely affected in a particular way by the conduct of third parties arising from what was said and took place in the pub.
31. Gatley on Libel and Slander (9th edition, 1998, pg. 119) sums up what constitutes special damage by reference to a range of authorities and states “special damage for this purpose is some “actual, temporal loss” – the loss of some “material” or “temporal advantage” which is “pecuniary” or “capable of being estimated in money”. So, for example, the requirement is satisfied where there is the loss or refusal of an office or employment, or the dismissal from a situation, or the loss of a client, or of a dealing.” Gatley goes on to point out that mere social ostracism or disgrace is not enough even though it’s effect on the Plaintiff may be very painful. The special damage must have accrued before action is brought. Mere apprehension or possibility of temporal loss in the future is not sufficient. (Onslow -v- Horne (3 Wils.177 at 188) cited with approval in M’Mullan -v- Mulhall and Farrell (cited above). In Michael -v- Spiers and Pond Ltd (1909 101 L.T. 352), cited by Gatley, the Plaintiff was ejected from the Defendants licensed premises by their servant who said that he was drunk. In that case it was held that a threat by the Plaintiff’s father to remove him from the Directorate of a company which he, the father, had control, unless the Plaintiff could clear his character, did not constitute special damage on the ground that a threat of temporal damage in the future was not sufficient to constitute such damage.
32. In any event in this case, there is no evidence of any actual, (or prospective) material or temporal loss on the part of the Plaintiff. In fact apart from the alleged defamatory nature of the words spoken, there was no evidence whatsoever of the effect of the alleged slander on third parties. Assuming, for present purposes, that the words were defamatory with the implication that the Plaintiff’s reputation was damaged by reference to those who became aware of the slander, this would obviously not constitute special damage as defined by the authorities. In short, the Plaintiffs have not established that they suffered any special damage arising from the slander alleged in the Civil Bill. Therefore, even if there was a slander, it is not actionable and the Plaintiffs must fail on this ground alone. It is, therefore, not necessary to enter upon the question whether in fact the words spoken by the first named Defendant were, in the circumstances, slanderous.
Damages for breach of contract
33. As regards damages I think it should first be noted that the contract was broader than the simple provision of sandwiches and cocktail sausages. This was no bread and butter business contract where the purely commercial value of the transaction is the sole or primary subject of the contract. It was a contract not only to provide food and a bar service but also to provide a place which would be an occasion for the enjoyment and celebration of the wedding day of the Plaintiffs to be shared in by their family and friends. It was a contract intended to ensure that the Plaintiffs could mark and bring to a close a momentous day in their lives in the comfort of the Downs Inn.
34. The loss sustained by the Plaintiffs arising from the breach of contract was not just disappointment at losing the advantages which might accrue from a successfully completed commercial transaction. The loss which they sustained, was the denial to the Plaintiffs of the occasion for enjoyment and happiness to be shared with their family and friends. That was the essence of the contract. For that loss they are entitled to compensation. The degree of that loss was undoubtedly exacerbated by the manner in which the contract was breached, namely, without forewarning and at the last minute when they arrived in the public house. This meant that instead of their wedding day ending on a memorable and high note, it was plunged to the depths of humiliation, shock and disappointment, which not only brought it to a distressing end but engraved a permanent blotch on the memory of what should always have been a day of good memories. Given the nature and purpose of the contract, the loss in this regard which the Plaintiff sustained was reasonably foreseeable and, moreover, flows directly from its breach. Damages are intended to be compensatory. In the circumstances of this case I am satisfied that the Plaintiffs are entitled to be compensated for the fact that they were wrongfully and in breach of contract deprived of their happy occasion to celebrate their wedding day and suffered the distress and disappointment which is inevitably a direct consequence of the breach of such a contract. The law and practice of the Courts in awarding damages for breach of this type of contract has evolved in recent decades (see for example Contract Law in Ireland, Robert Clarke, 4th edition. at 479) stimulated to a significant extent by the decision of the English Court of Appeal in Jarvis -v- Swans Tours Ltd [1973] 1 A.E.R. 71. In Johnson -v- Longleat Properties (Dublin) Ltd (unreported, High Court, 19 May, 1976 and noted in 13 Ir.Jur. 186, 1978) McMahon J. stated
“It appears to me that in principle damages may be awarded for inconvenience or loss of enjoyment when these are within the presumed contemplation of the parties as likely to result from the breach of contract. That will usually be the case in contracts to provide entertainment or enjoyment …”.
35. On the evidence, both Mr Dinnegan and Mrs Dinnegan suffered not only humiliation in front of their friends, but a great deal of personal distress that this particular day should be spoilt in such a shocking, uncaring and arbitrary manner. I accept the evidence that they were emotionally devastated, that Mrs Dinnegan was tearful for many hours afterwards and that although they had the option of seeking out some other hostelry to get together for at least a drink, they were so distressed that they really did not have the heart in them to do so. Mrs Dinnegan was so upset that she visited her father’s grave for solace. In my view they are both entitled to significant damages against the Defendants. I would not differentiate between the Plaintiffs on the question of damages and therefore I aware €6,000 damages to Mr Dinnegan the first named Plaintiff and €6,000 damages to Mrs Dinnegan the second named Plaintiff. Accordingly there will be a decree of €12,000 damages for the Plaintiffs against the Defendants.
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doyle -v- The Private Residential Tenancies Board [2015] IEHC 724 (10 November 2015)
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Cite as: [2015] IEHC 724
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Judgment
Title:
Doyle -v- The Private Residential Tenancies Board
Neutral Citation:
[2015] IEHC 724
High Court Record Number:
2014 264SP
Date of Delivery:
10/11/2015
Court:
High Court
Judgment by:
Baker J.
Status:
Approved
Neutral Citation: [2015] IEHC 724
THE HIGH COURT
[2014 No. 264 S.P.]
BETWEEN
MICHAEL DOYLE
align=”right”>PLAINTIFF/APPLICANT
AND
THE PRIVATE RESIDENTIAL TENANCIES BOARD
DEFENDANT/RESPONDENT
AND
TOM KAVANAGH
NOTICE PARTY
JUDGMENT of Ms. Justice Baker delivered on the 10th day of November, 2015
1. The applicant brings these proceedings by special summons pursuant to s.123(3) of the Residential Tenancies Acts 2004 – 2009 (the “Act”) in which he claims that the respondent, the Private Residential Tenancies Board (the “PRTB”), erred in law in determining a dispute between him and his landlord in respect of arrears in rent. The claims in the special summons may be broken down into three parts. First, a claim that the respondent erred in law in certain procedural approaches taken by it to the questions before it. Second, a claim that the respondent erred in determining that the applicant had a contractual obligation to pay rent to the notice party, a receiver appointed to a company which owned the lessor’s interest in the tenancy. Third, a claim for certain consequential orders varying and/or cancelling the determination order issued by the respondent on the 13th June, 2014.
2. The respondent and the notice party were separately represented by solicitor and counsel, although each of them may be said to be representing the same interest in that they each sought to uphold the determination order made by the PRTB and each of them denied that any error of law occurred, whether in the procedural manner alleged by the applicant, or in the proper interpretation of the contractual matrix giving rise to the tenancy.
3. The respondent and the notice party each make a preliminary point that the proceedings are improperly constituted and that the claim of the plaintiff/applicant is more properly characterised as a claim amenable to judicial review, and that no point of law arises which may be appealed under the section.
Background facts
4. The applicant is a software developer and company director and on the 18th December, 2008 entered into a residential tenancy agreement with one Mark McInerney in respect of a residential premises at Sienna, 3 Rockbrook Hall, Bray Road, Foxrock, Dublin 18, and where he has continued to live with his family. The initial rent was agreed at €5,000 per month and this was reduced by agreement on the 18th December, 2010, to €3,000 per month.
5. The tenancy agreement was registered with the PRTB as is required by statute.
6. The initial letting was for 12 months certain, and was renewed from time to time, the last formal renewal being agreed between the applicant and Mr. McInerney on the 18th December, 2012.
7. Shortly thereafter the applicant received a letter dated the 9th April, 2013 from Tom Kavanagh, the notice party, notifying him that on the 22nd March, 2013 he had been appointed as receiver over certain assets of a company, Cheval Construction Ltd. (“Cheval”), and that rent should henceforth be paid to the receiver. One payment in the sum of €2,000 was made by the applicant to the receiver in May 2014. No other payments have been made. A dispute arose between the receiver and the applicant as to the monthly rent, and the receiver ultimately accepted that he was bound by an agreement made before his appointment to reduce the rent to €3,000 per month. Nothing now turns on that disagreement.
8. The receiver served a notice of termination on the 11th October, 2013, in respect of the tenancy and pursuant to s. 34 of the Act. The reason stated for the termination of the tenancy was “due to the breach of your tenancy obligation in that you failed to pay rent in accordance with the terms of the tenancy agreement, and your obligations under the Residential Tenancies Act 2004”. Twenty four hours’ notice was given and the applicant was required to deliver up possession on the expiration of the notice period.
9. On the 22nd October, 2013, the applicant submitted an application for dispute resolution to the PRTB, pursuant to s. 78 of the Act of 2004, alleging that the notice of termination was invalid. The adjudicator on the 11th December, 2013, made a determination that the notice of termination was valid. The matter was appealed by the applicant to the Appeals Board, and came up for hearing before the PRTB Tenancy Tribunal (the “Tribunal”) on the 19th May, 2014, when both parties were represented by a solicitor.
10. The Tribunal decision issued on the 5th June, 2014, determined that the notice of termination was invalid by reason of non-compliance with ss. 34 and 67(3) of the Act of 2004. The PRTB, however, determined that the applicant should pay the sum of €40,098.63 by way of as arrears of rent within 28 days of the issue of the determination notice.
11. It is in respect of the determination that the applicant should pay the said sum in respect of arrears of rent that these proceedings are brought and the applicant argues that the PRTB had no jurisdiction to make this determination, as there was “no dispute or complaint before the PRTB, or before the adjudicator at first instance, in respect of any matter other than the invalidity of the notice of termination.”
An appeal on a point of law
12. The applicant identifies certain issues as points of law in respect of which a statutory appeal is said to arise. The respondent asserts that the points raised are either points of fact or points more properly raised by way of judicial review, in that the applicant’s argument is essentially one that the Tribunal exceeded its jurisdiction. It therefore falls first to me to determine whether these are questions of law or fact, or whether the decision of the Tribunal ought properly have been challenged in respect of some or all of its findings by way of judicial review.
13. The distinction between an appeal on a point of law created by a statutory appeal mechanism and a judicial review is one in respect of which there is some judicial authority, but the authorities point to some difficulty in defining the exact line of demarcation between them. Recently the Supreme Court considered the question in Fitzgibbon v. Law Society of Ireland [2014] IESC 48 where Clarke J. delivered a concurring judgment by which he offered what he described as “observations” on the distinction between forms of appeal, and considered how to characterise an appeal on a point of law from a statutory body or decision-maker, and distinguish it from other forms of appeal or review. He gave by way an example of an appeal on a point of law from a statutory body the type of appeal in this case, an appeal under s. 123(3) of the Residential Tenancies Act 2004.
14. As Clarke J. pointed out, there is an established jurisprudence as to the meaning of the term “appeal on a point of law” and he referred to the seminal judgment of Kenny J. in Mara v. Hummingbird Ltd. [1982] I.L.R.M. 421 which identified a distinction between an appeal on fact or primary facts, and an appeal on a point of law. The latter includes decisions based on an interpretation of documents, and of statutory provisions, which fall squarely within the definition. More difficult to characterise are appeals where a deciding body had come to conclusions on primary facts which no reasonable body could have made, and such decisions are amenable to an appeal on a point of law as the deciding body “must be assumed to have misdirected himself as to the law or made a mistake in reasoning”. The third category of an appeal on a point of law is the more obvious one of where a deciding body has adopted a wrong view of the law.
15. The matter was summarised by McKechnie J. in Deely v. Information Commissioner [2001] 3 IR 439 at p. 452 and the four principles stated were quoted with approval by Clarke J. and later cited in the Supreme Court judgments of both Fennelly and Kearns JJ. In Sheedy v. Information Commissioner [2005] 2 IR 272. They bear repeating here:
“There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;
(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision…”
16. Laffoy J. considered the characterisation of a number of disputes in respect of which an appeal on a point of law was brought by a tenant in Canty v. Private Residential Tenancies Board [2007] IEHC 243. She considered that certain questions before her were questions of law, including the question as to the validity of the termination notice, the reasoning adopted by the Tribunal on the validity of a rent increase, and the period of notice required to be given by a landlord to effect such increase. She took the view that the Board had erred in law in determining that a valid notice of increase had been served by the landlord, and that one of the two notices of termination served by the landlord was invalid for failure to comply with the statutory time requirements. She refused to set aside a finding that the landlord had served a notice of termination in the context of his stated need and intention to occupy the premises for his personal use and whether this was bona fide, and did so applying a test of whether there was evidence to support such a finding.
17. Laffoy J. referred to the test in the case of a judicial review and quoted from the dicta of Finlay J. in O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39 at p.72, with regard to the scope of judicial review to set aside a decision on the basis of irrationality. She too regarded Mara v. Hummingbird Ltd. as perhaps closer to the appropriate test in respect of an appeal on a point of law, and she summarised at p.19 the decision of Kenny J. as being that:
“findings on primary facts should not be set aside by the court unless there was no evidence whatsoever to support them”
Discussion
18. In Fitzgibbon v. Law Society of Ireland, Clarke J. made an observation which guides me in my consideration as to whether some of the points raised by the applicant in this case are more properly matters for judicial review. At paras. 8.1-8.2 of his decision he said the following:
“Any public law decision having an effect on legal rights and obligations is, of course, amenable to judicial review. The purpose of judicial review is to determine the legality (whether procedural or substantive) of the decision challenged. While this judgment is not the place to engage in the difficult but important task of defining the precise boundaries of a judicial review (there is more than ample jurisprudence in this area), nonetheless it is, in my view, worthy of comment to note that, at the level of principle, there must be some difference between even the most restrictive form of appeal (being an appeal on a point of law only) and a judicial review.
Given that judicial review lies in respect of all public law decisions affecting rights and obligations, it must be assumed that, by conferring a right of appeal, the Oireachtas intended that some greater degree of review is permitted than that which would have applied, in the context of judicial review, in any event. It is in that context that the concept of an “error within jurisdiction” may well be relevant. Without seeking to define the parameters of that concept, there clearly are errors which do not give rise to judicial review for they do not affect the lawfulness as opposed to the correctness of the decision taken. The precise extent of the type of error which may not give rise to a finding that a decision is unlawful as opposed to merely incorrect is not a matter on which I touch in this judgment.”
19. I consider that this dicta points to the proposition that when the Oireachtas provides a statutory right of appeal on a point of law, it must have intended some greater degree of court involvement with the decision than the perhaps more constrained approach taken by a court on judicial review. The distinction does allow a court hearing an appeal on a point of law to set aside a decision within jurisdiction where perhaps the evidence was sufficient to support a finding but where the decision was vitiated by legal error. It may also not involve an element of curial deference in a suitable case.
20. The appeal on a point of law, then, gives a wider scope to a court to reverse or vary a decision of the body at first instance, and while that is not to say that the court will set aside a finding of fact, more important for present purposes, it does suggest that a court hearing a statutory appeal may set aside a finding which arises from an incorrect interpretation of the law or of legal documents, including contractual documents which bear on the dispute, or a mixed question of law and fact.
21. I turn now to consider the grounds of appeal and whether they are amenable to the process envisaged by s. 123(3) of the Act
The first ground of appeal: no disagreement regarding rent arrears
22. The first point of appeal is that there was no “disagreement” or dispute between the appellant and his landlord with regard to arrears of rent. The applicant says that the sole dispute referred by him to the adjudicator, and on appeal to the Tribunal, was with regard to the validity of the termination notice. He succeeded in his appeal and the Tribunal held that the termination notice was invalid for absence of proper procedure or notice. The applicant argues that there was before the Tribunal, and at first instance before the adjudicator, no dispute within the meaning of s. 75 of the Act which allows a determination that he was in arrears of rent.
23. The Act allows a party or parties to refer to dispute resolution certain “disagreements” as defined in s. 75 (3) as follows:
“For the purposes of subsection (2) ‘disagreement’ shall be deemed to include—
(a) any issue arising between the parties with regard to the compliance by either with his or her obligations as landlord or tenant under the tenancy,
(b) any matter with regard to the legal relations between the parties that either or both of them requires to be determined (for example, whether the tenancy has been validly terminated),
and, without prejudice to the generality of the foregoing, shall be deemed to include a claim by the landlord for arrears of rent to which the tenant has not indicated he or she disputes the landlord’s entitlement but which it is alleged the tenant has failed to pay.”
24. The applicant argues that there was no claim for arrears of rent to which the deeming provisions apply as he had indicated that he disputed the right of the receiver to collect the rent. He says, however, that the Tribunal’s jurisdiction is as a matter of law confined to the dispute raised by a person or persons who submit a dispute to it, and that its power to determine that dispute is constrained by the matters thus defined. He had not argued that there were no arrears, but rather that the notice did not give sufficient time and was not in compliance with the Act of 2004.
25. The respondent and the notice party argue that the question is not one of law, and at best is a question of jurisdiction, namely whether the Tribunal has a jurisdiction to entertain a claim for arrears of rent, and whether it exceeded the jurisdiction vested in it by virtue of the submission to dispute resolution by the applicant.
26. I consider that counsel for the PRTB is correct that the issue of the extent of the jurisdiction of the Tribunal is one which raises points amenable to judicial review. This does not however mean, for this present purpose, that the matter may be raised only by judicial review, and I consider that a point of law is engaged, namely whether there was as a matter of law, and having regard to the statutory provisions, a “disagreement” before the Tribunal that the rent was in arrears and directing payment of that rent. There is also a mixed question of law and fact whether the Tribunal correctly approached the hearing as one involving the question of arrears of rent, and in taking a view that it had the power to determine the arrears of rent. Accordingly, I accept that counsel for the applicant has identified a question of law with regard to the determination of the Tribunal, namely whether the Tribunal was correct in the way in which it approached the question.
27. In that regard I note s. 76 of the Act provides that either or both a landlord and tenant may refer a dispute for resolution. The Act envisages a number of disputes being determined in an adjudication or appeal to the Tribunal, and that one or several disputes may be referred by either landlord or tenant, or both. Section 76 is clear in this regard. What is not identified in the Act is how a disagreement is to be formulated, and whether the formulation by one or both parties, as is the case with pleadings in court litigation, is required to be formally set out by the parties before the hearing, or whether it may arise in the course of the hearing, subject of course to fair procedure being afforded to each party, and no matter of “surprise” arising.
28. The applicant does not argue that the question of rent arrears came as a surprise to him, and whilst he makes a number of averments in his affidavits that he was denied natural justice and that he was unaware that the issue of rent would be raised at the Tribunal, he does not say that he was denied natural justice in that the arrears of rent were raised for the first time either at the adjudication or at the hearing before the Tribunal, or that he asked for, and was not afforded, an opportunity to consider the figures. He says, rather, that rent was not an issue. I disagree, and consider that rent was a matter legally before the Tribunal and before it the adjudicator, and I say so for the following reasons.
29. In effect, what the applicant argues is that the person who fires the first shot or who first refers the issue to the resolution process fully delineates the matters that may be resolved in the process. This cannot be correct as a matter of law as by virtue of s. 75 of the Act any issue between the parties may be referred to the PRTB for resolution, and it cannot be the case that properly interpreted the section does not allow the respondent to an appeal to raise issues for determination.
30. I do not consider that the deeming proviso in s. 75(3) limits the power of the Tribunal to determine disputes with regard to arrears of rent to those disputes in respect of which the tenant has not indicated that he or she disputes the landlord’s entitlement. I consider that on a true reading of s. 75(3), any issue between the parties with regard to the compliance with the covenants and agreements in a letting agreement, or with regard to their legal relations, may be submitted for dispute resolution, and that the landlord may, in the context of this referral, make a claim for arrears of rent.
31. Further, I consider that the adjudicator, and ipso facto the Tribunal on appeal, was entitled to inquire into each relevant aspect of the dispute, and this included the dispute with regard to the arrears of rent, and indeed as to the quantum of those arrears which ultimately came to be a matter of little contention between the parties. This is expressly provided in s. 97(2) of the Act, which provides as follows:
“The person appointed under section 93 (3) or 94 (a) to conduct the adjudication (“the adjudicator”) shall inquire fully into each relevant aspect of the dispute concerned and provide to, and receive from, each party such information as is appropriate.”
32. To some extent it might be argued that s. 97(2) begs the question raised in this case as it refers to “the dispute concerned” but a regard must also be had to s. 97(3) which provides:
“For that purpose, the adjudicator may require either party to furnish to him or her, within a specified period, such documents or other information as he or she considers appropriate.”
33. The procedure for dispute resolution is provided in Chapter 6 of the Act of 2004. The Tribunal inter alia hears appeals under s. 100 from the determination of an adjudicator, and it was by that procedure that the Tribunal came to hear the appeal in this case. The Tribunal is required under s. 104(3) to give notice of the holding of the hearing, and to include certain information and certain notices, including an outline of the substance of the matters to be dealt with at the hearing.
34. The combined effect of these sub-sections is that the Tribunal on appeal has the power to characterise or formulate the dispute, to request documentation and information, and to transmit the relevant documentation and information to each party. In doing so it identifies the issues.
35. The documentation furnished to the parties ran to 42 pages, with a fully paginated table of contents and included the report from the adjudicator, the rent statement, the deed of appointment of the receiver and correspondence. Thus, the Tribunal itself, in its notice dated the 27th March, 2014, furnished the relevant documentation and identified the issues, including the issue of rent arrears and the identity of the landlord.
36. It is evident from the documentation sent by the Tribunal to both parties in advance of the hearing in its letters of the 27th March, 2015 that the question of arrears of rent was a live issue in the file. In particular, I note a rent statement and correspondence relating to rent were enclosed by the PRTB in correspondence sent to both landlord and tenant in accordance with the statutory requirements
37. One of the documents furnished by the Tribunal to the parties in advance of the hearing was the report of the adjudicator, Dairine MacFadden, in respect of the adjudication held before her on the 11th December, 2013. From this it is clear that the landlord sought at that hearing “an order for the arrears of the rent and an order for possession”. Thus there was before the adjudicator at least two issues, the issues with regard to the validity of the notice of termination, and the issue of the arrears of rent.
38. The applicant appealed the quantum of the rent, on a number of grounds, namely that there had been an agreed reduction, and that the tenant was entitled to deduct certain expenditure on maintenance against the moieties of rent. The notice of appeal expressly asserted that “the Adjudicator denied me an opportunity to present contradictory evidence to establish that the rent adjudicated on as being outstanding, was overstated and took no account of the counter-claims against the landlord for breach of his obligations.” Further, the landlord put before the adjudicator in correspondence his claim for arrears of rent and the matter had thus crystallised as a claim and counter-claim.
39. Accordingly, I consider that the tenant himself put the issue of rent before the Tribunal, albeit not before the adjudication hearing. He thereby vested in the Tribunal on appeal an entitlement to consider the question of arrears in the appeal. In the alternative he implicitly accepted that the question was properly vested in the Tribunal. Equally, the landlord made a claim for arrears at first instance and on appeal.
40. Finally, and arising from first principle, I consider that the applicant is incorrect as his argument is in essence that the resolution process established by the Act, whether at first instance before the adjudicator, or on appeal before the Tribunal, requires pleadings and processes akin to those of a court. One of the purposes of the Act was to simplify the resolution of landlord and tenant disputes in the residential sector. This is clear from the long title which identifies the common good as one of the principles upon which the Act of 2004 was founded. At para. (c) of the long title the following appears:
“(c) with the aim of allowing disputes between such parties to be resolved cheaply and speedily, for the establishment of a body to be known as an Bord um Thionóntachtaí Cónaithe Príobháideacha or, in the English language, the Private Residential Tenancies Board and the conferral on it of powers and functions of a limited nature in relation to the resolution of such disputes,”
41. The dispute resolution mechanism established by the Act of 2004 cannot involve the denial of natural or constitutional justice or fair process, but it is undoubtedly the case that the process was intended to be cheaper, more speedy and accordingly less cumbersome and weighed down with formal procedures than those which must be adopted by litigants in the courts. Thus, the procedure for the lodging of a short-form application for submission to dispute resolution does not of itself delimit the dispute and the extent of the dispute can come to be formulated in the course of a hearing before an adjudicator, or before the Tribunal, or in the case of the Tribunal by the Tribunal’s own exercise of identifying the relevant documents and information which it considers relevant to the dispute and in respect of which the parties are given an opportunity to consider in advance of the hearing.
42. Further, I consider that the primary argument of the applicant, that the adjudicator and the Tribunal were constrained in their approach to the dispute by the initial dispute as framed or formulated by the applicant to be incorrect as a matter of law and as a matter of good sense. Even in the course of complex litigation in the Superior Courts, there is established jurisprudence that a party may amend pleadings, and this can be done even in the course of the trial. The requirements of justice and fairness of process can be met by an adjournment or, as the case may be, the making of case management directions or the hearing of modular issues. If such jurisprudence exists in the case of a court, then still more must be said to exist as a matter of law in a tribunal which is given a mandate to deal with disputes efficiently and speedily, and where no formal pleadings are required in the legislation or in any regulations for the initiation of dispute resolution. McGovern J. In County Louth VEC v. Equality Tribunal (Unreported, High Court, 24th July, 2009) commented on this and made the following observation at para. 6.2:
“If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint… remains the same.”
43. This comment was quoted with approval, and followed by Hedigan J. in Clare County Council v. Director of Equality Investigations & Anor. [2011] IEHC 303. It seems to me to guide my consideration of the first point of appeal and together with the reasons here articulated leads me to the conclusion that the question of rent arrears was before the Tribunal.
Conclusion on the rent question
44. For these reasons stated I therefore consider that the question of rent, and the claim by the landlord for the payment of arrears was before the adjudicator and before the Tribunal on appeal.
The second ground of appeal: The identity of the landlord
45. The second ground of appeal is that the Tribunal erred in law in determining that rent was due to the receiver, as there was “no agreement at all” between the applicant and the receiver which might have constituted a tenancy agreement in respect of which arrears of rent might have arisen. The claim is somewhat unclearly formulated, and the plaintiff changed solicitor after the initial proceedings and grounding affidavit were lodged. Counsel who argued the matter before me appropriately sought to refine the claim and he did so partly in the context of the statement of opposition as filed by the respondent and by the notice party. Counsel is to be commended for this approach.
46. The question of whether the receiver was entitled to the rent is undoubtedly a question of law, and is a question which brings into play s. 108 of the Land and Conveyancing Law Reform Act 2009, as well as the contractual relationship between landlord and tenant. It bears noting for that purpose that the notice of termination was served by the receiver arising from an alleged arrears of rent, and that the applicant at no time, neither before the adjudicator nor the Tribunal, nor indeed before this Court, made any argument whatsoever that the rent had not fallen into arrears, that he had paid his identified landlord, who was a natural person and not a company, the rent to date, or that the amount of rent calculated to be due and owing was incorrect arithmetically.
47. The argument made is that the evidence before the Tribunal did not justify its decision that the receiver was entitled to collect the rent. This is a question of law, and one amenable to appeal on a point of law, and, in accordance with the decision in Mara v. Hummingbird Ltd. However, I consider that this argument is wholly without merit and that there was ample evidence before the Tribunal, and indeed ample evidence submitted by the parties in advance of the hearing, showing the deed of appointment of the receiver, and the chain of correspondence between the applicant and the receiver. The applicant never sought to challenge the title of the receiver having received sufficient evidence of his appointment. The applicant was prudent not to seek to deny the title of his landlord as this might have brought about a forfeiture as a matter of law. Mark McInerney, the person originally identified by the applicant as being his landlord, was a director of Cheval and also its secretary, and if the applicant has a tenancy, it has to be with the company, and the company being in receivership, the receiver is entitled to collect the rent.
48. What is noteworthy also in the finding of the Tribunal is that the applicant gained advantage from the receiver’s acceptance that he was bound by the agreement to accept a reduced monthly rent. The receiver gave evidence in the course of the hearing that he was “sufficiently persuaded” in a separate dispute process between him and the applicant that such an agreement had been reached. Thus, by November 2013, on his evidence, he accepted the lower rent, and the applicant had the advantage of an earlier dispute resolution process in which he had successfully persuaded the receiver that he was bound by the contractual agreement to reduce the rent. Thus even as early as November 2013 the applicant had engaged with the receiver, when the amount of the arrears was in issue between them and the quantum was one capable of being calculated at a figure below that initially claimed by the receiver. At that point in time the identity of the landlord had ceased to be an issue between the parties and I consider that the applicant’s attempt to bring it later into issue is without merit, and was not one seriously contended before the Tribunal at the oral hearing at which he was legally represented. I consider that the applicant, having gained the advantage of a dispute resolution mechanism with the receiver, and having persuaded him to accept the lower rent, cannot now seek to argue in this Court that he did not know, or that there was insufficient evidence before the Tribunal, that the person lawfully entitled to the rent was the receiver, and not the natural person whom he identified as landlord in correspondence.
49. I accept the argument of counsel for the receiver that the applicant did not raise at the adjudication hearing or at the Tribunal the question of the identity of the landlord or of his title. In that context, that matter is not before me, and may not be raised by way of a separate appeal. Furthermore, even if I am incorrect in this, it seems to me that there was adequate evidence on which the Tribunal could have made its decision, and that the applicant, if he is to take a prudent approach to the question, must accept that the rent is payable to the receiver. I also take the view, and this is a view on facts, that the correspondence between the applicant and the receiver adequately recognises the receivership and the receiver’s right to collect rent, and that the earlier dispute resolution in November 2013, and the current dispute as it played out in the correspondence regarding the question of the validity of the termination notice, contains an acknowledgement by the applicant of the role of the receiver and his right to collect rent, although I make that observation by way of comment only and the question is one of fact in respect of which I have jurisdiction to decide.
Conclusion
50. Accordingly, I consider that the applicant has not made out a case, and that the Tribunal did not err in determining that the receiver was entitled to receive that rent.
The third point of appeal
51. The third point of appeal raised is that the Tribunal did not have jurisdiction to determine the appeal as the tenancy was not registered under s. 134 of the Act. The obligation to register is imposed by the section on the landlord and the evidence is that the tenancy was registered on 18th December, 2008, but that in the registration particulars the landlord was identified as Mr McInerney and not the company, Cheval. In the case where a landlord is a company s. 136 requires that the registered number and office of that company be identified. Section 135 requires that each new tenancy be registered.
52. I express no view as to whether the tenancy was a “new” or different tenancy from that registered and that question has no bearing on the matter before me for reasons that will appear below.
53. By virtue of s. 83 of the Act the Tribunal has no power to deal with a dispute referred to by a landlord where the relevant tenancy is not registered.
54. The applicant claims that as the tenancy of the company was not registered that the Tribunal had no jurisdiction to deal with the dispute, and that the determination must therefore fall insofar as it deals with any dispute referred by the landlord.
55. This ground of appeal must fail as it was not raised in the adjudication hearing or before the Tribunal on appeal. This Court is not hearing the appeal de novo and is confined by its statutory remit to consider only those matters of law wrongly determined by the deciding body.
Conclusion
56. The appeal therefore fails for the reasons stated.
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doyle -v- Private Residential Tenancies Board [2016] IEHC 36 (02 February 2016)
URL: http://www.bailii.org/ie/cases/IEHC/2016/H36.html
Cite as: [2016] IEHC 36
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Judgment
Title:
Doyle -v- Private Residential Tenancies Board
Neutral Citation:
[2016] IEHC 36
High Court Record Number:
2014 264 SP
Date of Delivery:
02/02/2016
Court:
High Court
Judgment by:
Baker J.
Status:
Approved
[2016] IEHC 36
THE HIGH COURT
JUDICIAL REVIEW
[2014 No. 264 SP]
BETWEEN
MICHAEL DOYLE
align=”right”>APPLICANT
AND
THE PRIVATE RESIDENTIAL TENANCIES BOARD
RESPONDENT
AND
TOM KAVANAGH
NOTICE PARTY
JUDGMENT of Ms. Justice Baker delivered on the 2nd day of February, 2016.
1. This judgment is given in the application by the notice party, Tom Kavanagh, (hereinafter “the receiver”) that he be awarded his costs against the applicant in the statutory appeal in which the applicant was unsuccessful in setting aside the finding of the respondent, the Private Residential Tenancies Board (hereinafter “the PRTB”). Judgement in the substantive action was delivered on 10th November, 2015, 2015 IEHC 724.
2. I have already ordered on the 18th November, 2015 that the respondent is entitled to its costs of the statutory appeal against the applicant.
3. Briefly, the applicant was a tenant of certain residential premises the subject matter of a dispute in which the Tenancy Tribunal of the PRTB delivered its determination on 13th June, 2014. As a result of that determination the applicant was ordered to pay a substantial amount of arrears of rent and ordered to vacate the premises by the date therein identified.
4. The interest of the landlord in the premises was held by a limited liability company, and the receiver was on 22nd March, 2013 appointed receiver over certain assets of that limited company, including the residential premises the subject matter of the dispute before the Tribunal.
5. The statutory appeal had an unusual procedural history and the applicant did not avail of the special statutory mechanism mandated by Order 84 C of the Rules of the Superior Courts for the making of an appeal on a point of law against a decision of the Tribunal. An order by Judge Binchy made on 18th May, 2015 regularised the pleadings to some extent and permitted the respondent and the notice party to file a statement of opposition as if the proceedings had been properly constituted. The use of the incorrect procedure resulted in the special summons coming on for hearing initially before the Master of the High Court, and further difficulty was caused by the fact that the proceedings were struck out by the Master of the High Court on 10th October, 2014 due to the non-attendance of the applicant.
6. The notice party claims all reserved costs and the costs of the hearing.
7. Counsel for the notice party argues that under Order 84 C he was a necessary party to the proceedings and had a legitimate interest to protect which was different to that of the PRTB, and that he had a duty to protect the tenancy. She also argues that as Binchy J. on the 18th May, 2014 directed that the matter be transferred from the Chancery list to the non-jury list, and gave directions, including directions for the service of a notice of opposition by her client, it would be invidious to deny him the costs of so doing.
8. She also argues that she made submissions at the hearing in the High Court which had not been made by the PRTB, primarily arguments with regard to whether the receiver was to be treated as a landlord, as the applicant had raised the question of the identity of the landlord before the adjudicator at first instance, and had subsequently sought to raise it in the High Court. In my judgment I expressed the view that the matter was not, and could not have properly been, before me.
9. For the reasons that I now outline I consider that the notice party should be granted its costs of part only of the appeal, as will appear from my reasoning, General discretion with regard to costs of the notice party
10. Counsel for the notice party relies on the decision of the High Court in O’Connor v. Nenagh Urban District Council and Dunnes Stores (Notice Party) [2002] IESC 42 where the Supreme Court did give the notice party its costs, but it seems to me that that case does not offer much assistance in that the notice party was a cross appellant and was in that context entitled to participate fully in the appeal. Furthermore the Supreme Court was considering the question of whether the High Court had correctly exercised its discretion in granting costs, and the Supreme Court was in turn constrained in the approach that it could take by the fact that, the exercise was one for the discretion of the High Court.
11. The judgment of Clarke J. in Usk and District Residents Association Ltd. v. Environmental Protection Agency and Ors. [2007] IEHC 30 is authority for the general proposition that costs, including the costs of a notice party, will generally follow the event, and also the dicta of Clarke J. at para. 5.5 of that judgment to the effect that a notice party that had defended its legitimate interests was entitled to costs.
12. However the balance of para. 5.5 bears repeating:
“I should, however, note that there may well be cases where it would be appropriate for notice parties (who are not as intimately connected with the issues as in this case) to consider whether it is necessary to participate, or at least participate fully, in judicial review proceedings. The mere fact that the party may have a sufficient interest so as to make it legitimate that they be placed on notice of the proceedings does not, of itself, necessarily carry with it an entitlement to that party to an unquestioned order for costs in the event of the proceedings being successfully defended. The extent to which such a notice party may be entitled to some or all of the costs of successfully supporting the defence of the application, will depend on all the circumstances of the case and, in particular, the extent of the interest of that party in the issues which are the subject of the judicial review application and the extent to which it may be regarded as reasonable for that party, in those circumstances, to independently oppose the application. Having regard to those principles it does not appear to me to be appropriate to diminish the entitlement of Greenstar to costs on the facts of this case.”
13. In the light of that dicta I consider that the costs of a notice party are not necessarily always to be treated as costs which “follow the event”, and the matter of costs will depend on the degree of participation of the notice party and whether that was justified. This is because a statutory appeal is not an inter partes action and the court is constrained in the approach that it may take to the appeal process in that it is confined to questions of legal construction, whether the approach of the statutory body was correct, whether it had sufficient evidence before it to come to the conclusion that it did, and the High Court may not on a statutory appeal on a point of law against a decision of the PRTB make any primary findings of fact.
14. This means, in practice, that the primary defender of the decision of the Tribunal is the PRTB, and a notice party does not have any central role in such an appeal. He or she might in that context have limited scope to make submissions, and while a notice party may be entitled to urge the court to take a particular approach, the argument of the notice party must, to a large extent, be constrained by the reasons and reasoning of the Tribunal in its primary decision and the basis for that decision.
15. As such, it seems to me, that a notice party will often at the hearing of a statutory appeal make arguments which were open to the PRTB to make, but which were either not canvassed at all by it, or were canvassed with a different emphasis. The question of the emphasis, or of approach is, in my view, a key to considering the role that a notice party takes in a statutory appeal.
16. I accept that there may be cases where a notice party does have a particular reason to engage with a statutory appeal, and Clarke J. identified that there may exist a spectrum at different points on which the court may engage a different approach, and may for example consider whether a notice party was a necessary party. That dicta suggests to me that the court is entitled to consider not merely whether the notice party was a necessary party in a procedural sense, but whether the notice party was required to engage with the proceedings as a litigant.
17. I do consider that the receiver had a financial or commercial interest to protect, but I consider that the question of whether that entitles him to costs is less straightforward than is submitted by counsel for the notice party. I consider that the most appropriate case to govern or guide my decision is the decision of Finlay Geoghegan J. in Treasury Holdings & Ors. v. NAMA & Ors. [2012] IEHC 518.
18. At para. 20 she asks whether the notice party was a “necessary party”:
“In all the circumstances of this application, I have determined that there should be no order for costs as between KBC and the applicants. I do so, firstly, by reason of the fact that KBC was not a necessary party to the proceedings; it sought to be joined and was permitted to be joined for the purpose of protecting its own commercial interests. It was not necessary for KBC to participate in the first five issues identified at para. 15 of the judgment of 31st July, 2012, [2012] IEHC 297, all of which were public law issues or a private law contractual issue which concerned NAMA and not any alleged arrangements with KBC. Insofar as KBC wished to address the Court on the sixth issue, whilst it was reasonable that KBC be permitted to do so, it does not appear to me to follow that they should be entitled to an order for costs against the applicants of defending the substantive proceedings, where the respondents were fully participating and represented and KBC decided that it wished to also participate in opposing the application in the protection of its own commercial interests.
19. Part of the reasoning of Finlay Geoghegan J. was that the notice party had itself applied to be joined in that case, but at para. 20 she asks, what I consider to be the central question, namely whether a notice party was a “necessary party”. I consider the question to be whether the notice party is a necessary party as a litigant, and accordingly the question is not merely one of whether a notice party had legitimate financial or economic interests to protect, as nearly all notice parties will be in that position, but whether it had interests to protect which were different from those of the Tribunal.
20. In many cases a notice party may elect to fully participate in the litigation primarily to ensure that all of the points which he or she considers to be relevant or appropriate are made in support of the impugned decision.
21. It seems to me that a notice party to a statutory appeal has a choice whether to instruct lawyers, and a separate choice whether to attend and participate in the hearing. A notice party could also instruct his lawyers to engage with the respondent to the appeal and this proposition seems to me to follow from the statement at para. 5.5 of the decision of Clarke J. in Usk and District Residence Association Ltd v. Environmental Protection Agency, that the issue is one of the reasonableness of the engagement.
22. In some cases the interest of the notice party lie wholly in supporting the decision of the statutory decision maker, and in arguing that the impugned decision is correct, unless of course the decision maker opts not to seek to uphold the impugned decision.
23. In the present case it would be true to say that the notice party did put forward arguments not made, or perhaps made with a different emphasis, by counsel for the PRTB. However the interest of the receiver and that of the PRTB were identical, namely an interest in upholding the decision that the tenancy was lawfully determined and that substantial arrears of rent were owed and were directed to be paid.
24. Counsel for the receiver points to the fact that she did deal extensively in her submissions with the question of the identity of the landlord and also with the argument that there might have been a sub-tenancy created by one of the directors of the company in favour of Mr. Doyle, an argument that was at one stage sought to be made by counsel for Mr. Doyle who at all times asserted that his landlord was a natural person and not a company.
25. Having regard to the fact that in my decision I found that the question of the identity of the landlord was not properly before me, and that I had no jurisdiction to deal with that factual question, and that the Tribunal had dealt correctly and within its jurisdiction in coming to the determination that the receiver was validly appointed, and that the landlord was a corporate entity, I consider that the submissions of the notice party with regard to those points were ones capable of being made by the PRTB, and were extensively dealt with in the affidavit evidence of Kathryn Ward, assistant director of the PRTB, at para. 16 of her affidavit sworn on the 28th January, 2015 and by John Tiernan, the chairperson of the hearing before the Tenancy Tribunal, in his affidavits sworn on 12th June, 2015 at paras. 16, 17, 18, 19, 20, 21 and 22 thereof.
26. In those circumstances I consider that the notice party could adequately have dealt with this appeal by direct engagement with the solicitors for the PRTB, and a pre-hearing engagement could have had the effect of assisting in the preparation of, or adding to, the legal submissions. One set of legal submissions would have been sufficient, and the affidavit evidence furnished by the receiver was in truth before the High Court in the exhibits and affidavit evidence proffered by the PRTB.
27. Had the receiver sought to engage with the PRTB, and had this proposal of engagement been refused, I might have come to a different conclusion, but I do not consider that the notice party needed to engage fully with the hearing and to be fully represented or to submit lengthy legal submissions and affidavit evidence. I pause briefly to note that counsel who appeared for the receiver made her submissions with considerable skill, but the question before me is whether the costs of the receiver in participating ought to be paid.
28. I can, it seems to me, distinguish the judgment of Clarke J. in Usk and District Residence Association Ltd v. Environmental Protection Agency because the reason why costs were granted to Greenstar, the notice party in that case, was that Greenstar had a particular and unique interest in the details of the result of the case which concerned the manner in which a waste facility was to be operated, and Greenstar’s engagement was of a unique degree having regard to the importance of those details.
29. I conclude that the receiver was not a necessary party in these proceedings as a litigant, and that the interests which the receiver sought to protect coincided with those of the PRTB, and, insofar as a different emphasis was sought to be applied to certain arguments or facts, the approach of the PRTB might have been usefully informed by pre-litigation engagement between the receiver and PRTB.
30. Even if I am incorrect in my conclusion that the receiver was a necessary party as a litigant in these proceedings, I consider that as the statutory appeal is not an inter partes process, and had my conclusion been that the PRTB was incorrect in its determination whether in whole or in part, the matter of the termination of the tenancy would have been returned to the PRTB for further argument and assessment on an interparty basis.
31. Furthermore I consider that to add a second layer of costs to an unsuccessful landlord or tenant in a statutory appeal might fail to achieve the purpose of the legislation and the desire of the Oireachtas to achieve a cost effective and speedy resolution of disputes in the residential sector.
Some costs?
32. Notwithstanding my general view with regard to the role of the receiver in this case, a unique element in this litigation was the unnecessary additional costs incurred by the receiver in engaging with the proceedings in the Masters Court and in dealing with the procedural difficulties that arose as a result of the adoption of an incorrect procedure. The procedural errors made by the applicant in the prosecution of the claim added considerably to the costs and expenses incurred by the receiver in having to engage with the appeal.
33. I consider that it is appropriate in those circumstances that the receiver be entitled to the costs of the appearances and attendances before the Master and the costs of the hearing before Binchy J. and I will hear counsel as to the precise form of the order I am to make in those circumstances.
H424
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Foley -v- Johnson & anor [2017] IEHC 424 (06 February 2017)
URL: http://www.bailii.org/ie/cases/IEHC/2017/H424.html
Cite as: [2017] IEHC 424
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Judgment
Title:
Foley -v- Johnson & anor
Neutral Citation:
[2017] IEHC 424
High Court Record Number:
2016 281 CA
Date of Delivery:
06/02/2017
Court:
High Court
Judgment by:
NÃ Raifeartaigh J.
Status:
Approved
[2017] IEHC 424
THE HIGH COURT
RECORD NO: 2016/281 CA
James M. Foley
align=”right”>Plaintiff
AND
Christa Johnson and Laraine Johnson
align=”right”>Defendants
EX TEMPORE JUDGMENT of Ms Justice NÃ Raifeartaigh delivered on the 6th February, 2017
This judgment was delivered ex tempore on the 6th February, 2017. At the request of the parties, this written judgment was prepared from the DAR.
1. This is a case which comes before this Court by way of appeal from an order of the Circuit Court. It is a case in which the plaintiff landlord is seeking to enforce, pursuant to s. 124 of the Residential Tenancies Act, 2004, (“the Act”) a determination of the Private Residential Tenancies Board (“the P.R.T.B.”) dated the 26th January, 2016. The Circuit Court Judge granted the relief sought by the landlord and the tenants, who are the defendants, have brought the present appeal.
2. The premises to which the decision of the P.R.T.B. relates are residential premises in Dalkey, Co. Dublin. It appears that the defendants have been renting and living in the premises since 2005. The rent was originally €2,000 per month, but this was reduced to €1,600 per month in the year 2014.
3. The plaintiff landlord, who is resident in the United States, has averred on affidavit that he wanted to implement improvements to the premises and make them available for himself and his family and, accordingly, wrote to the defendant tenants on the 23rd April, 2015, indicating that the premises would not be available for lease after the 30th September, 2015. The defendants have sworn on affidavit that the landlord visited them personally on the 17th April, 2015, and gave them verbal notice to vacate the property and that they were shocked, and that this was followed by a further visit within a few days with a written notice of termination which he, in their words, forced them to sign. The landlord averred that the first written notice was invalid, and accordingly a further notice dated the 11th August, 2015, was served.
4. The defendants referred the matter to the P.R.T.B. and an adjudicator was appointed to deal with it. By letter dated the 22nd October, 2015, which has been put before the Court, the P.R.T.B. wrote to the solicitors for the plaintiff landlord advising that the first defendant had sought dispute resolution in respect of the tenancy at the premises in question. The letter stated, inter alia: “This dispute concerns alleged invalid Notice of Termination.” This, it appears, was the only issue in respect of which complaint was formally made to the P.R.T.B..
5. By letter dated the 23rd October, 2015, the solicitors for the landlord served a further notice of termination.
6. The matter came on for hearing before the adjudicator appointed by the P.R.T.B. on the 4th November, 2015. The landlord was not present, but was represented by his solicitor. The defendants represented themselves. The adjudicator suggested to the parties that they might try and resolve their dispute by agreement. This is a procedure envisaged by the Act, under s. 97.
7. The agreement which was signed on that day provided that: the tenants would vacate the premises on Friday 3rd June, 2016, which was some seven months later; that they would continue to pay the rent of €1,600 monthly until vacating the premises, less one month’s rent in November, 2015; and that the landlord would refund the deposit of €2,000 on their exiting the premises, less any just deductions. The agreement also provided that the tenants were entitled to reimbursement in respect of the purchase of one oven. The agreement stated that it represented “full and final settlement of all issues outstanding at today’s date between the parties including any allegations in relation to maintenance of the premises.” It recorded that the parties had been made aware of the 21 days cooling off period and that after that period, had elapsed, there was no appeal.
8. In accordance with the Act, a decision reached by agreement cannot be adopted by the adjudicator until a period of 21 days has elapsed. As is clear from the terms of the agreement itself, this was explained to the parties. At the conclusion of 21 days, the adjudicator prepared a report to which was annexed the agreement.
9. On the 26th January, 2016, in accordance with the procedures envisaged by the Act, the adjudicator’s determination was the subject of a determination order by the P.R.T.B. itself.
10. On the 10th May, 2016, the defendants wrote a four-page letter to the P.R.T.B., some three weeks before they were due to leave the premises, saying that they did not have legal advice when they signed the agreement and that they signed it under duress. They requested the Board to re-open the matter. In the course of the letter, they raised a number of issues, which were also dealt with in the affidavits in these proceedings, referred to below.
11. The Board replied by letter dated the 7th June that it did not propose to reopen the hearing.
12. The defendants did not vacate the premises on the 3rd June, 2016. They have not, as a matter of fact, paid rent since June, 2016. That, it has become clear, is for reasons which have to do with a simple inability to pay because of circumstances in which they find themselves and is not in any way due to wilful default of any kind.
13. The present proceedings were issued by notice of motion in August, 2016, grounded upon an affidavit sworn by the plaintiff landlord. Affidavits of reply were sworn by each of the defendants. A further affidavit was then sworn by the solicitor for the plaintiff, who had been present at the P.R.T.B. hearing on the 4th November, 2015. Further affidavits were sworn by each of the defendants by way of reply to the solicitor’s affidavit.
14. The matter came on for hearing before the Circuit Court and by order dated the 7th December, 2016, the Court granted the reliefs sought by the landlord. A notice of appeal was filed on the 7th December and the matter came on for hearing before this Court on the 23rd January, 2017. A stay on the Circuit Court order had been granted until the 6th January. This Court, before Christmas, extended that until the 23rd January 2017, on which date the hearing took place.
15. In their letter to the P.R.T.B. dated the 10th May, 2016, and in their affidavits on this motion, the defendants allege certain matters by way of background to the P.R.T.B. hearing on the 4th November, 2015. In the first instance, they draw attention to the fact that the second defendant has had very serious health problems for many years. I do not think it is necessary to ventilate these personal matters publically, but I have carefully considered all of those medical problems, which are obviously very serious, very severe, and cause debilitating pain. These conditions, she avers, have rendered her unable to pursue her career of playing the piano, composing, and teaching voice, and are also exacerbated by stress. Further, because her daughter, the first defendant, has been acting as her part-time carer, she herself has been unable to find suitable employment. These factors explain their inability to pay rent as of June last year. Secondly, the defendants complain of the plaintiff’s behaviour towards them generally, over a long period of time, which they describe as bullying and intimidating. Thirdly, they say that the premises were in a state of serious disrepair but that the plaintiff was always unwilling to make repairs. In this regard, the Court’s attention is drawn to an HSE report, which shows a considerable state of disrepair and I note also that this report had been submitted to the P.R.T.B. with their application.
16. The application before the Circuit Court, which is on appeal to this Court, is brought pursuant to s. 124 of the Act. Section 124 of the Act is very specific about the grounds on which a determination of the P.R.T.B., which includes a determination which incorporates an agreement, can be challenged. Section 124 of the Act provides as follows:-
“(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the Circuit Court for an order under subsection (2).
(2) On such an application and subject to section 125 , the Circuit Court shall make an order directing the party concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms, unless—
(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or
(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.
(3) The matters mentioned in subsection (2) are—
(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,
(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,
(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,
(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous.” (emphasis added)
The italicized text makes it clear that enforcement of a determination is and that a determination can only be departed from if one of the conditions in (a) or (b) is satisfied, and not for any other reason. These grounds on which an order can be challenged are extremely narrow and would, to lawyers, be broadly familiar as essentially a paraphrase of the tests which would apply in judicial review proceedings.
17. As regards the events before the P.R.T.B. on the 4th November, 2015, which fall to be scrutinised according to these tests, there is a degree of conflict of evidence on the affidavits. Having considered those carefully, I find that the following events are likely to have occurred, on the balance of probabilities;
(a) It has been averred and has not been challenged that the adjudicator started by saying that the applicant appeared to be entitled to recover the property and that it might be appropriate for them to consider resolving matters by agreement. This is significant because it indicates that the adjudicator was indicating that she was likely to rule in favour of the applicant on the strict legal issue of the notice of termination’s validity.
(b) The adjudicator pointed out that if the defendants had put in a claim for damages before the P.R.T.B., this could have been dealt with up to a maximum of €20,000.
(c) The adjudicator said that in the absence of any claim for damages having been made, she could not adjudicate on a claim for damages on that day;
(d) That an agreement could be reached on all issues between the parties, but if so, this would have to be in full and final settlement of all issues, and this would preclude a claim for damages being made in the future;
(d) What was on the table for the defendants on that date was either (i) that the notice of termination would be ruled on, and would likely be ruled to be valid, in which case they would have to vacate by the 4th December 2016; or (ii) they could get an extra 7 months in the house by agreement together with a minor agreement on reimbursement for the purchase of a new oven.
18. A number of matters have been raised by the defendants on affidavit. I have considered each of these and I separate them out in the following way. The first issue is whether they entered into the agreement under pressure or duress. The second is the issue of legal advice. The third is what I take to be effectively an allegation that there was a misunderstanding by the adjudicator of how the Act operates. Fourthly, in issue is the refusal of the P.R.T.B. to re-open the case on receipt of their letter. Finally, an issue was raised as to whether the adjudicator was wrong not to adjourn the proceedings to enable the defendants to make a formal claim for damages.
Whether the defendants entered into the agreement under pressure or duress
19. I have no doubt that the defendants did feel under pressure to enter this agreement, because their options were limited, as described above, namely that the options on the table on that date were that either the notice of termination would be ruled to be valid, in which case they would have to vacate by the 4th December, 2016, or they could effectively buy themselves a period of time, up to seven months, by agreement. However, I think that the core of this pressure came from the circumstances in which they found themselves, namely, that the landlord wanted them to vacate the premises of which he was lawful owner, and from which he was legally entitled to evict them by the 3rd December, 2016. Whether he was bullying and intimidating in the months or years prior to this date, a matter on which I make no finding of fact, has little to do with this fundamental situation. There is a fundamental imbalance in the position of a landlord and tenant which stems from the harsh realities of life; a landlord is entitled to evict a tenant if he wishes to do so, provided he gives adequate and lawful notice. This is so, no matter how long the tenant has been in the property, no matter how well integrated into the area, and no matter how sick he or she is, or how difficult it would be for him or her to move out of the premises.
The issue of legal advice
20. The P.R.T.B. proceedings are relatively informal and it is not necessary to have a lawyer, but indeed, it is worth noting that many litigants before these courts on a daily basis are also unrepresented. Sometimes they enter into settlements and agreements and it has never been accepted that any such agreements entered into are invalid for the simple reason that the parties have not been legally represented. To so find would have very far reaching consequences and I am also conscious that the first named defendant, who represented herself in these proceedings, did so in a very intelligent and articulate way and I am not satisfied that the absence of a lawyer rendered the proceedings so fundamentally procedurally flawed that the Court is entitled to intervene. I should say also that even if the defendants had a solicitor advising them at the time, it is difficult to see what difference it would have made to the fundamental problem facing them, which is the one described above.
The alleged misunderstanding by the adjudicator of how the Act operates
21. It has been argued by the defendants that the adjudicator was wrong to say that she did not have jurisdiction to deal with the issue of damages in circumstances where s. 115 of the Act sets out a full range of reliefs that may be granted, including damages. However, it seems to be that the point being made by the adjudicator was not that she could never award damages, but that she could not do so on that day in the absence of a claim for damages having been made and therefore being formally before her. I am of the view that the adjudicator was correct in this regard. There is a difference between issues which can be dealt with by way of agreement, and issues which can be ruled upon. To put it another way, it is a question of jurisdiction; it seems to me that she was not necessarily wrong in taking the view that she did not have jurisdiction to rule on a claim for damages unless a formal application had been made. The fact that other matters were discussed in the context of the agreement does not in any way contradict that. It is simply that when matters are agreed, the limits on jurisdiction do not apply in the same manner. It also seems to be, on the evidence, that it was explained by the adjudicator that if the parties were to sign up to the agreement it would be in full and final settlement and they would be abandoning any claim for damages in the future.
Refusal of P.R.T.B. to re-open the case
22. It seems to me that there was also a complaint about the failure to re-open the case after the 21 day cooling off period. The defendants have explained the severe pressure under which they were operating during these months and how the second named defendant was severely debilitated. On the other hand, I note that it was not simply a question of missing the time limit by a few days. The letter first intimating a challenge to the decision of the P.R.T.B. was not sent until May, 2016, approximately three weeks before the agreed date for leaving the premises. I am not prepared to find that the decision of the P.R.T.B. to refuse to re-open the case at that stage was somehow in breach of fair procedures or somehow legally invalid.
The failure of the adjudicator to adjourn the case to enable a claim for damages to be made
23. The final matter that was raised was the failure of the adjudicator to adjourn the case. It was argued that, when faced with parties who are unrepresented in circumstances where they had a potentially valid claim for damages, it was up to the adjudicator to adjourn proceedings to enable them to make such a claim so that all matters could be dealt with together in circumstances where she would have jurisdiction to deal with everything, which would have changed, as it were, the bargaining parameters for any agreement. The question of whether or not a case should be adjourned is at the discretion of an individual adjudicator, the P.R.T.B. or any decision making body over which this Court has judicial review-type supervision. It seems to me that this is a decision she made within jurisdiction and one she took in view of whether they understood the options in front of them. It seems to me that it could not be described as a procedural flaw that she did not decide to adjourn the matter; she had the people in front of her on the day and would have had a better view of whether they understood the options and whether they were prejudiced by virtue of a lack of legal advice. This is a decision she reached within her discretion. The courts are traditionally reluctant to interfere with any decisions made within discretion and in the present case I am not prepared to find that the decision was one which was procedurally unjust; it was a decision which she reached validly within her discretion and within her jurisdiction. The other point to be made is that the lodging of a claim for damages was never, in any event, going to affect the termination of the tenancy. At best, and without suggesting that it necessarily would have, such a claim could have led to some damages being awarded which would have offset arrears of rent. It would not have affected the fact that once a valid termination notice had been served, the landlord was entitled to insist on the tenants leaving the premises.
Conclusion
24. As stated at the outset, s. 124 gives a very limited power to this Court to review a decision of the P.R.T.B.. It is not simply the Court taking its own view of what should have happened on the day; there are very narrow procedural grounds for reviewing the P.R.T.B. determination. In my view they are not satisfied here. I do have enormous sympathy at a human level, but I am not entitled to set aside the legal parameters in order to achieve a result that would enable these tenants to live in the premises indefinitely, and particularly in circumstances where they would inevitably be living there rent-free, given their difficult circumstances, which is not a criticism, but merely a reality. The agreement was reached in November, 2015; they had seven months to vacate at that stage; the order of the Circuit Court was made on the 7th December, 2016; and they got a stay over Christmas which was increased until the 23rd January, 2017. In reality, the courts have been as fair and as indulgent as they could possibly be. At the end of the day there is an agreement, which is a valid agreement, which has not been demonstrated to be procedurally unfair or in breach of any of the conditions in s. 124.
25. Accordingly, I will grant the relief sought by the plaintiff and refuse the appeal. I will hear argument as to the length of stay necessary to enable the defendants to assemble their belongings and leave the premises.
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hyland -v- Residential Tenancies Board [2017] IEHC 557 (06 October 2017)
URL: http://www.bailii.org/ie/cases/IEHC/2017/H557.html
Cite as: [2017] IEHC 557
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Judgment
Title:
Hyland -v- Residential Tenancies Board
Neutral Citation:
[2017] IEHC 557
High Court Record Number:
2017 103 MCA
Date of Delivery:
06/10/2017
Court:
High Court
Judgment by:
Noonan J.
Status:
Approved
[2017] IEHC 557
THE HIGH COURT
[2017 No. 103 MCA]
BETWEEN
AMY HYLAND
align=”right”>APPELLANT
AND
RESIDENTIAL TENANCIES BOARD
RESPONDENT
AND
LUKE CHARLTON AND MICHAEL COTTER
NOTICE PARTIES
JUDGMENT of Mr. Justice Noonan delivered on the 6th day of October, 2017
1. This is an appeal on a point of law brought pursuant to s. 123 (3) of the Residential Tenancies Act, 2004 (“the 2004 Act”) against a determination of the Tenancy Tribunal of the respondent (the RTB) made on the 17th February, 2017.
Background Facts
2. The notice parties are bank appointed receivers over a number of properties owned by Denis Scriven, the appellant’s stepfather. These properties include a dwelling at 31 Carrigmore Crescent, Saggart, Citywest, Dublin 24. The appellant became the tenant of that property pursuant to an arrangement with Mr. Scriven. The notice parties were appointed by deed on the 4th June, 2014. They subsequently registered the tenancy with the RTB.
3. When they did so, they were not in a position to ascertain the commencement date of the tenancy because neither the appellant nor Mr. Scriven were prepared to cooperate with them. By letter of the 5th June, 2014, the second notice party wrote to the appellant as the occupant of 31 Carrigmore Crescent advising her of the appointment of the receivers and asking her to provide details of the basis upon which she occupied the property. She responded in the following terms by letter of the 24th June, 2014:
“Re: my home at 31 Carrigmore Crescent.
My landlord is Ger Scriven. My rental agreement is with Ger Scriven.
I have been told to call the guards should you or anyone working with you come to my home! Please contact Ger Scriven for anything to do with this property.
Amy (the occupant).”
4. By letter of the 7th July, 2014, from the notice parties’ solicitors to the appellant, they called upon her to pay the rent due to the notice parties as being the only persons legally entitled to receive it. In the intervening two years or so, no rent was paid by the appellant to the notice parties and accordingly by letter of the 17th June, 2016, the solicitors for the notice parties called upon the appellant to vacate the premises within 21 days.
5. The appellant failed to do so and accordingly the notice parties served a Notice of Termination on the 17th August, 2016. An application for adjudication in respect of the appellant’s overholding was made to the RTB and came on for hearing before an adjudicator on the 9th November, 2016. The appellant did not appear at the hearing and the notice parties were represented by their solicitor. The adjudicator determined that the appellant should vacate the premises within 28 days and pay a sum of €7,540 by way of arrears of rent in instalments. The appellant appealed the adjudicator’s determination to the Tenancy Tribunal before which a hearing took place on the 23rd of January, 2017.
6. On that occasion the notice parties’ solicitor again attended and the appellant attended and was represented by a Mr. Seery, an engineer. It would appear that Mr. Seery on behalf of the appellant made two points to the Tribunal. The first was that the appellant is a “child” of the landlord, Mr. Scriven within the meaning of s. 3 (2) (h) of the 2004 Act and accordingly the provisions of the Act did not apply.
7. The second point made by Mr. Seery was that Mr. Scriven’s wife, Ms. Samantha Hyland was the appellant’s mother and was effectively a joint landlord of the property by virtue of her marriage to Mr. Scriven and the fact that the appellant had paid rent both to her and Mr. Scriven on a periodic basis. It would appear that the appellant stated in evidence that she had taken up occupancy of the premises in mid 2015 and had previously been in occupation in 2014 having left for alternative accommodation before returning. The appellant confirmed that she had written the letter of the 24th June, 2014 acknowledging that Ger Scriven was her landlord.
8. The third point made by Mr. Seery was that the registration of the tenancy by the notice parties was invalid and therefore the Tribunal had no jurisdiction in the matter.
Findings of the Tribunal
9. The Tribunal found that the 2004 Act did apply to the case because the appellant was not a “child” of the landlord within the meaning of s. 3 (2) (h). It gave its reasons for so finding.
10. Secondly, it found that submissions regarding the registration of the tenancy were not within the remit of the Tribunal as this was a matter between the RTB and the party lodging the dispute. The Tribunal found as a fact that Mr. Scriven was, and at all times remained, the appellant’s landlord and in that regard noted the content of her letter of the 24th June, 2014. The Tribunal rejected the appellant’s submission that her mother was also her landlord. It noted that in subsequent correspondence between the appellant and the notice parties and their solicitors, it had never been alleged by her that her mother was a joint landlord of the property and that her assertions to the contrary were therefore not credible. Furthermore, neither the appellant nor Mr. Scriven gave evidence in support of the proposition that her mother was a joint landlord.
11. The Tribunal accordingly affirmed the determination of the adjudicator that the notice of termination was valid and that the appellant should vacate within 56 days of the date of issue of the order. The Tribunal also determined that arrears of €8,060 were due and provided for payment by instalments.
The Appeal to the High Court
12. The within notice of motion, issued by the appellant as a litigant in person, merely states that the appellant appeals against the decision and finding of the Tribunal determination. Section 123 of the 2004 Act provides in relation to a determination order that:
“(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.”
13. Order 84C of the Rules of the Superior Courts in relation to statutory appeals such as the present one, provides at r. 2 (3):
“(3) Where the relevant enactment provides only for appeal to the High Court on a point of law, the notice of motion shall state concisely the point of law on which the appeal is made.”
14. Clearly therefore, the notice of motion in the present case entirely fails to comply with the requirements of O. 84C. In that regard, when the matter was before the court on the 5th April, 2017, I directed the appellant to identify the point of law which she sought to ventilate on the appeal. That direction appears not to have been complied with. In the normal way, this would cause the appeal to fail in limine. However, having regard to the fact that this point was not explicitly relied upon in argument by the RTB or the notice parties and given that the appellant lodged the appeal as a litigant in person but is now legally represented, I propose to consider the substantive issues raised.
The Issues
15. It was agreed between the parties that three issues arise for consideration:
1. Is the appellant a “child” of the landlord within the meaning of the 2004 Act so that it does not apply? As noted above, the Tribunal concluded that the appellant was not a “child” and thus the Act did apply.
2. The Tribunal lacked jurisdiction to deal with the matter by virtue of the fact that the tenancy was not validly registered. The Tribunal held that this was not within its remit.
3. The Tribunal ought to have adjourned or stayed the proceedings pending the determination by the High Court of a claim by the appellant’s mother to an interest in the property the subject matter of these proceedings.
Discussion
16. I propose to deal with each of these issues in turn.
Issue 1.
Section 3 of the 2004 Act insofar as relevant to this appeal provides as follows:
“(1) Subject to subsection (2), this Act applies to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act).
(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings—…
(h) a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling, …”
It is not suggested in the present case that a written lease or tenancy agreement was entered into. The only issue that arises therefore is the meaning to be attributed to the word “child” in the subsection. Section 4 (1) provides that:
“ ‘child’ includes a person who is no longer a minor and cognate words shall be construed accordingly;”
17. Therefore no explicit definition of the word “child” is to be found in the 2004 Act. Like any other piece of legislation, the 2004 Act must be interpreted in accordance with well settled canons of construction, the first and most basic of which is that words should be accorded their natural and ordinary meaning. The appellant has sought to argue that in the light of evolving concepts of family, the word “child” is ambiguous and unclear as to its meaning and in the light of those same concepts, it ought to be regarded as including a stepchild. I cannot accept that proposition. The word “child” in its natural and ordinary meaning can only refer to the biological offspring of a natural person. Such a person’s son or daughter is a “child” of that person. Of course whether a person is the biological offspring of another is, with advances in medical science, perhaps a more complex question that it used to be. What is clear however is that a person who has no biological connection to another cannot be the latter’s “child”. A stepchild is thus not a “child”.
18. If there were any doubt about this, and I believe there is none, it is removed by s. 39 of the Act itself. That section provides that a tenancy shall terminate on the death of the tenant save where certain conditions are satisfied. Those conditions include that stipulated in s. 39 (3) (a) (iii) that the dwelling was at the time of the death of the tenant occupied by:
“(iii) a child, stepchild or foster child of the tenant, or a person adopted by the tenant under the Adoption Acts 1952 to 1998, being in each case aged 18 years or more…”
19. The subsection therefore clearly recognises that a child is something different from a stepchild or indeed a foster child or an adopted child. In a different context, s. 35 of the Act at subs. (4) defines a reference to a member of the landlord’s family for the purposes of the Table at s. 4 of the Act as being a reference to any spouse, child, stepchild, foster child, grandchild, parent, grandparent, stepparent, parent-in-law, brother, sister, nephew or niece of the landlord or a person adopted by the landlord under the Adoption Acts, 1952 to 1998. Here again, a clear distinction is drawn between a child and a stepchild. Since the passing of the 2004 Act, separate reference to an adopted child is now no longer necessary by virtue of s. 18 of the Interpretation Act, 2005 which expressly provides that a reference to a child of a person in any enactment shall be construed as including a reference to an adopted child as defined.
I am therefore satisfied that on a literal interpretation of s. 3, the meaning of the expression “child” is clear and unambiguous and accordingly does not apply to the appellant.
Issue 2.
20. The appellant’s second argument is that the Tribunal had no jurisdiction to deal with the matter on account of some alleged infirmity in the registration of the tenancy with the RTB. Although the appellant does not spell out clearly what this infirmity is, it seems to arise from para. 3 of her first affidavit in which she avers:
“The receivers purported to register the property under a part 4 tenancy. I say that the receiver was incapable of doing so. Further I say even if he were capable (though this is not admitted), the application contains material inaccuracy that leaves any registration made on foot of same without validity. The material inaccuracies were fundamental to the registration pertained, inter alia, to the identity of the landlord which was incorrect, and the commencement date of the tenancy which was incorrect etc.”
21. The appellant does not make clear what she means by the identity of the landlord being incorrect because it could either be that the identity of the landlord was Mr. Scriven, and not the notice parties, or alternatively that it was Mr. and Mrs. Scriven and not the notice parties. In either event the objection is misconceived. The receivers undoubtedly had a sufficient interest in the property to register the tenancy when they did, having being lawfully appointed in relation to it.
22. Furthermore, if the suggestion is that Mrs. Scriven was the joint landlord and she neither registered the tenancy nor is noted as a landlord, the Tribunal found as a fact on all the evidence which was before them that Mrs. Scriven was not a landlord of the property. This was clearly a finding of fact that was open on the evidence and cannot be challenged in an appeal on a point of law. In effect the appellant is arguing that the Tribunal reached the wrong conclusion on the evidence, clearly a matter which goes to the merits and is outside the scope of this appeal.
23. The point about the commencement date of the tenancy being inaccurate cannot in my view avail the appellant in circumstances where both she and her stepfather refuse to cooperate with the notice parties and provide this information.
24. Perhaps the most important point here however is that the jurisdiction of the Tribunal itself, to which the appellant appears to have submitted by her participation, was conferred by the RTB accepting the registration of the property in the first instance. If the RTB’s decision to do so had been made outside of its jurisdiction, as the appellant now contends, then it seems to me that the appropriate way of challenging the registration was to seek judicial review of the decision to register. Having not done so, I do not think the appellant can now be heard to criticise the Tribunal for failing to come to the conclusion that it did not possess the requisite jurisdiction to hear the appeal from the adjudicator.
Issue 3.
25. The final point made in argument before this court for the first time was that the Tribunal ought to have adjourned or stayed the hearing pending the outcome of proceedings brought in the High Court by Mrs. Scriven claiming an interest in the property. It has to be said that those proceedings, initiated by Mrs. Scriven in 2013 as a litigant in person, appear to have been pursued with little enthusiasm by her. It took some four years for Mrs. Scriven to deliver a statement of claim which she finally did on the 27th February, 2017, and only then in response to a motion brought by the notice parties to have the proceedings struck out for want of prosecution. In my view the Tribunal was perfectly correct in proceeding to hear and determine the appeal as it was tasked to do. More importantly however, no application was ever made to the Tribunal for an adjournment or a stay pending the High Court proceedings. This issue was therefore never confronted by the Tribunal nor was it asked to make any determination in relation to such issue.
26. In that respect, I cannot see how this could form the basis for an appeal on a point of law to this court. A similar statutory provision under the Freedom of Information Act, 1997 was considered by me in McKillen v. The Information Commissioner [2016] IEHC 27. Section 42 of the 1997 Act provided for an appeal to the High Court on a point of law from a decision of the Information Commissioner in terms similar to s. 123 (3) of the 2004 Act. In McKillen, I noted (at para. 59):
“A s. 42 appeal is not a de novo hearing where the appellant is at large to advance new arguments or evidence not put before the respondent. It is an appeal on a point of law which was considered and dealt with by the respondent…. As Smyth J. remarked [in South Western Area Health Board v. Information Commissioner [2005] 2 IR 547], it would be entirely unsatisfactory if appeals on pure points of law could be run on the basis of matters never raised before, let alone considered and decided by, the respondent. That would transform the appeal into something quite different from that envisaged by the Act.”
27. I am therefore satisfied that not only is this point without merit but the appellant has no entitlement to raise it in this appeal.
Conclusion
28. For the reasons I have explained, I am satisfied that this appeal must fail and I will accordingly dismiss it.
H812
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Keon -v- Gibbs & anor [2015] IEHC 812 (21 December 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H812.html
Cite as: [2015] IEHC 812
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Judgment
Title:
Keon -v- Gibbs & anor
Neutral Citation:
[2015] IEHC 812
High Court Record Number:
2015 248CA
Date of Delivery:
21/12/2015
Court:
High Court
Judgment by:
Baker J.
Status:
Approved
Neutral Citation: [2015] IEHC 812
THE HIGH COURT
2015 No. 248 NCA
BETWEEN
JOHN KEON
align=”right”>APPELLANT/TENANT
AND
MARK GIBBS (IN HIS CAPACITY AS RECEIVER OVER CERTAIN ASSETS OF JOE McNAMARA) AND THE PRIVATE RESIDENTIAL TENANCIES BOARD
RESPONDENTS
JUDGMENT of Mr. Justice Baker delivered on the 21st day of December 2015
1. This judgment concerns the approach of the court to an application to extend time to appeal a decision of the Private Residential Tenancies Board (hereinafter “the Board”) under the provisions of Order 84C of the Rules of the Superior Courts.
2. Application was brought by notice of motion dated the 19th August, 2015 for an order extending time for service and lodgement of a notice of appeal against an order made by the Board on the 23rd June, 2015. The application is contested by the first named respondent, the second respondent, the Board, having taken no part in this application.
Background
3. The appellant holds an apartment premises at 14 Dun na Carraige, Salthill, County Galway (hereinafter “the Premises”) under letting agreement made on the 6th June, 2012 between Joe McNamara as landlord of the one part, and the appellant of the other part, for the fixed term of two years from the 6th June, 2012, at the monthly rent of €400.00, payable in advance.
4. On the 12th April, 2006 the landlord had mortgaged the premises to IIB Home Loans Ltd., since renamed KBC Bank Ireland Ltd., (hereinafter “the “Bank”) as security for the loan advanced to purchase the Premises.
5. By deed of appointment made on the 4th October, 2012 the Bank appointed the first named respondent, Mark Gibbs, as receiver over all of the assets secured by the mortgage, including the Premises. I will refer to Mr. Gibbs as “the Receiver”.
6. The Receiver notified the tenant of his appointment on the 5th October, 2012 and directed that rent be paid to him from November, 2012 onwards. The tenant did make three payments of rent on 5th November, 2012, on 7th December, 2012 and on 8th February, 2013, but has not paid the whole or any part of the rent thereafter.
7. The Receiver advised Mr. Keon he intended to sell the Premises at a meeting on 15th March, 2013, and would require vacant possession for that purpose. The Receiver was relying on a clause in the letting agreement that expressly provided that “in the event of the house being sold” the landlord was entitled to give the tenant one month’s notice to vacate.
8. Mr. Keon at that meeting informed the Receiver that the Premises has been sublet to students, and asked that the tenancy continue, so they could remain in possession until they finished their exams in May, 2013. The evidence of the Receiver is that Mr. Keon agreed to deliver up possession on 12th May, 2013, but did not do so.
9. The Receiver served a Notice of Breach of Obligations of Tenancy in statutory form on the 9th January, 2014, on the stated grounds that the tenant had failed to pay rent for the period of thirteen months to that date, and that he had unlawfully sublet the Premises without the consent of the landlord.
10. On the 22nd of January, 2014 the Receiver served a fourteen day warning notice in accordance with s. 67(3) of the Residential Tenancies Act, 2004 (hereinafter “the Act of 2004”) demanding rent, and thereafter on the 10th February, 2014 served a notice of termination giving 28 days’ notice in accordance with s. 34 of the Act of 2004.
11. The tenant did not vacate the Premises, and employed solicitors who corresponded with the Receiver inter alia for the purposes of seeking information with regard to his appointment.
12. On the 26th March, 2014 the Receiver referred the matter to the Board for dispute resolution. The hearing before the adjudicator was conducted on the 15th July, 2014 at which the tenant and the Receiver each appeared in person, and the landlord was represented by solicitors.
13. The adjudicator found that the tenant was overholding, that arrears of rent in the sum of €6031.50 was then owed in respect of the tenancy, and awarded the Receiver damages of €800.00 for non payment of rent, and damages of €400.00 for unlawful subletting.
14. The tenant appealed by notice under s. 100 of the Act of 2004 on the 26th August, 2014, and a hearing date was set for the 22nd May, 2015. Mr. Keon was represented by Mr. Toal B.L. and the Receiver by his solicitor. The tenant sought an adjournment, which was refused. Thereafter the matter proceeded to hearing, and the Tribunal delivered a determination on the 26th June, 2105, by which it directed that the tenant deliver up vacant possession of the Premises within fourteen days, and pay the sum of €9,992.50 in respect of arrears of rent and €1,000.00 in damages, such sums to be paid by specified instalments.
15. The Determination Order of the Tribunal was sent under cover of letter dated 26th June, 2015 with the standard note which contained the following statement:
“This Determination Order shall, on expiry of the period of twenty-one days from the date of issue, become binding on the parties concerned, unless an appeal is made by any of the parties directly to the High Court on a point of law before then, pursuant to s. 123 (3) of the Residential Tenancies Act, 2004”.
16. By letter dated the 24th July, 2015 the tenant, through a new firm of solicitors, purported to lodge a notice of appeal directly with the Board. The appeal was purported to be made on a document entitled “appeal application form”, which in form and in effect is almost identical to the statutory document submitted by the tenant in August, 2014 by way of appeal from the decision of the adjudicator and which formed his appeal to the Tribunal.
17. The Board pointed out in an email of 29th July, 2015 that a finding of the Tribunal could not be appealed other than to the High Court.
18. No further step was taken by the tenant to avail of the correct mechanism for appeal until approximately two weeks later, when on the 12th August, 2015 his solicitors wrote to the Receiver indicating that Mr. Keon intended seeking to appeal the determination order to the High Court, and that he was also considering an application for judicial review of the decision.
19. On the 19th August 2015 this application was brought by motion to extend time for service of a notice of appeal.
20. On the 3rd September, 2015 Binchy J. refused the tenant leave to apply for judicial review of the decision of the Tribunal.
Procedure for appeal
21. Order 84C of the Rules of the Superior Courts, inserted by S.I. 14 of 2007, provides the procedures to be adopted for appeals from decisions of statutory bodies, and O. 84C r. 2(5)(a) prescribes a notice period of 21 days, subject to any provision to the contrary in the relevant enactment. Section 123(3) of the Act of 2004 provides in relation to a Determination Order issued by the PRTB that “any of the parties concerned may appeal to the High Court within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law”. Subparagraph (8) defines the “relevant period” as 21 days beginning on the date of issue of the Determination Order to the parties.
22. Appeals are by way of notice of motion and the court has power to extend the period for bringing of an appeal pursuant to O. 84C r. 5(b) as follows:
“within such further period as the Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter.”
23. I turn now to consider the test to be applied by the court in considering the application to extend time.
The test in O.84C r.2(5)
24. As is apparent from the words of the sub rule, the court has a discretion to extend the time to appeal, but the discretion is constrained by a requirement that there be:
a. good and sufficient reason for extending that period and
b. that the extension of the period would not result in an injustice being done to any other person concerned in the matter.
25. The common law test to be met by an applicant seeking to enlarge time to appeal was established in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd [1955] 1 I.R. 170 where the Supreme Court identified a three stage test that requires an applicant to show:
a. That he or she had a bona fide intention to appeal within the relevant time period;
b. that there was an element of mistake, and mere error of procedure is not sufficient for this purpose, and
c. that there is an arguable ground for appeal
26. One question that arises for consideration in this case is the extent to which the principles elucidated in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd inform the court’s discretion in extending time under O. 84C r. 2 (5).
27. Neither counsel has identified any decision which establishes the test to be met by an applicant for an extension of time to lodge an appeal in respect of a decision of the Board, but certain other authorities have been identified with regard to the meaning of the special provisions of O. 84C.
28. Hedigan J. in Chesnokov v. An tÁrd-Chláraitheoir [2015] IEHC 497 was considering an appeal against a refusal to register the appellant’s birth pursuant to the Civil Registration Act of 2004. Hedigan J. considered that, although at first glance the appeal seems to be out of time, that on the correct characterisation of the correspondence, it was not. Thus he did not have to consider the question of the interplay between the Eire Continental Trading Company Ltd v. Clonmel Foods Ltd test and the apparently separate test identified in O. 84C.
29. In Little v. FSO and Another [2011] IEHC 137 McMahon J. was considering an appeal against the decision of the Financial Services Ombudsman and took the view that s. 57 CL (3) (b) of the Central Bank Act 1942, as inserted by s. 16 of the Central Bank and Financial Services Authority of Ireland Act 2004, conferred upon him a wide discretion to consider what he regarded as “exceptional circumstances” arising from the fact that the appellant was out of the country, unfamiliar with email and other telecommunication and technologies which might have eased communication with his solicitor, none of which was denied by the Ombudsman, and held that the time for bringing the appeal should be extended. McMahon J. did consider the matter in the light of the test in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd but concluded that in the particular statutory context of s. 57 CL (3) of the Act of 1942, he had a discretion to consider matters outside those identified in O. 84C.
30. Neither judgment is sufficient authority on the nature of the test and, as the particular requirements of O. 84C require a consideration of what is “good and sufficient reason”, I turn now to deal with that element of the test.
“Good and sufficient reason”
31. Some authorities have been identified with regard to the phrase “good and sufficient reason” in similar applications. Denham J. in S. v. Minister for Justice and others [2002] 2 IR 163, referring to Section 5(1)) of the Illegal Immigrants (Trafficking) Act, 2000 which gave the court a jurisdiction to extend the time if “there is good and sufficient reason” for doing so, regarded the extent of delay to be “an important factor in considering the application”. She also identified some of the elements in the test explained in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd as relevant, namely the requirement that the intended appellant formed the intention to appeal within the time, and took the view, also present in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd, that mistake by legal advisors would not prima facie be a good and sufficient reason.
32. In general Denham J. regarded the obligation on the part of the applicant to show:
“circumstances must exist to excuse such a delay and to enable the matter to be considered further”.
33. The same statutory test had been considered earlier by the Supreme Court in G.K. and Others v. Minister for Justice [2002] 2 I.R. 418, where the court considered inter alia the application for an extension of time to apply for judicial review in respect of the decision of the respondents to refuse refugee status. Hardiman J. described the power to extend time as a “special statutory jurisdiction” which he said was sui generis, but considered that elucidation could be drawn from the established jurisprudence in relation to other powers of a cognate nature.
34. I consider that the judgment of the Supreme Court is persuasive and on point, and while its decision was given in a statutory scheme which is not in pari materia to the provisions of O. 84C, there is sufficient similarity in purpose in that each relate to the tests to be applied by the court in extending time to appeal, and I do not consider that any real difference in approach is warranted, especially as the language in the respective provisions is identical.
35. I consider that the court in engaging the special provisions of O. 84C must look to the reason for the delay and to the other factors that might lead it to a view that there is good and sufficient reason to extend time. This requires analysis of the explanation offered for the delay, but also whether it can be said that there are sufficient reasons to permit the extension. The requirements are cumulative, and it seems to me that it is not intended that the court would look exclusively to whether the reason for the delay is good, but whether in all the circumstances there is a sufficient reason to extend time. Thus the mere fact that an intended appellant was out of time by mere days is not of itself determinative. A particular focus of the argument before me was whether the court in hearing the application to extend time must have regard to the nature of the appeal, and I turn now to consider that question.
The prospect of success in the appeal
36. Counsel for the tenant argues that O. 84 r. 2(5) replaces the Eire Continental Trading Company Ltd v. Clonmel Foods Ltd test, although he accepts that the decision of the Supreme Court, and the authorities which further explained the principles, are relevant and may provide guidance. He argues that as the Rules do not expressly make reference to the question of the prospect of success in the appeal the court ought not to embark on an enquiry into the nature of the appeal at this stage.
37. Hardiman J. in G.K. and Others v. Minister for Justice held that the court hearing an application for an extension of time was required to consider the merits of the substantive case. The applicants had contended that the phrase “good and sufficient reason” excluded any consideration of the merits of the substantive application, and that if the delay between the expiry of the statutory time and the making of an application to extend was not excessive, that they were entitled to an order extending the time. Counsel for the applicant makes a similar argument and relies in particular on a decision of the English High Court in Bovale Ltd v. Secretary of State for Communities and Local Government and Another [2009] 3 A.C 340, a judgment which I do not find persuasive in that it considered the power of the court to vary or alter a practice direction.
38. The respondents contended that the phrase included a consideration of the merits, albeit it was conceded that an elaborate consideration was not required. Hardiman J. agreed, and drew by analogy from the common law rules, starting with Eire Continental Trading Company Ltd v. Clonmel Foods Ltd, the third limb of the test which requires the Court to consider whether the intended appellant has an arguable case on appeal. He also noted that this requirement exists on applications to stay proceedings on the grounds of delay and made the point that:
“By parity of reasoning, the fact that a case was apparently unarguable must also be relevant”.
39. He regarded the argument from those analogous applications to be persuasive, but considered that the imperative contained in the provisions of s. 5 (1) of the Act of 2002, which permitted the court to extend the time for “good and sufficient reason”, “still more clearly” permitted the court to consider whether the substantive claim is arguable. He went on to say, in a paragraph with which I agree, as follows:
“If a claim is manifestly unarguable there can normally be no good or sufficient reason for permitting it to be brought, however slight the delay requiring the exercise of the court’s discretion, and however understandable it may be in particular circumstances. The statute does not say that the time may be extended if there were ‘good and sufficient reason for the failure to make the application within the period of fourteen days’. A provision in that form would indeed have focussed exclusively on the reason for the delay, and not on the underlying merits. The phrase actually used ‘good and sufficient reason for extending the period’ does not appear to me to limit the factors to be considered in any way and thus, in principle, to include the merits of the case.
On the hearing of the application such as this it is of course impossible to address the merits in the detail of which they would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration of an arguable case. In addition, of course, the question of the extent of the delay beyond the fourteen day period and the reasons if any for it must be addressed.”
40. Denham J. in S. v. Minister for Justice quoted that paragraph with approval.
41. I consider the approach of the Supreme Court in these two cases to be unanswerable and directly on point. Accordingly in considering the application for extension of time to appeal, I am of the view that all of the circumstances of the case must be considered including whether the intended appellant can show arguable grounds of appeal. However, the provisions of O. 84C contain an additional element which in my view makes the requirement to look to the merits of the appeal even more obviously necessary, and I turn now to consider that element.
Prejudice to any other person
42. The statutory provisions of s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000 do not contain any additional requirements such as is found in O. 84C, where the court must, in addition to considering whether there are good and sufficient reasons, also consider whether prejudice will be done to the other party. Denham J. in S. v. Minister for Justice, did indeed refer to the fact that the State was not prejudiced by the delay, and this was one factor that influenced her decision, but she did so in the context of identifying likely prejudice as an element in her discretion rather than a matter to which she was mandated to have regard.
43. The inclusion of this extra element of the test, not found in the statutory provisions with regard to which Hardiman J. delivered his judgment in G.K. v. Minister for Justice, and also not present in the legislation governing the Financial Services Ombudsman with which the judgment of McMahon J. is concerned, creates an additional element which must be considered. This it seems to me adds further weight to the argument, already clear from the judgment of the Supreme Court in G.K. v. Minister for Justice, that the applicant for an extension of time must show an arguable ground of appeal, as injustice would almost always be done to a respondent where the time for appeal to be extended without the court, at least, requiring that the appeal be more than vexatious or frivolous or prima facie unlikely to succeed, and it will almost always cause prejudice, and be burdensome, to a party to be required to meet an appeal which is not arguable.
44. The additional requirement is one that in my view imposes a further hurdle on an applicant for an extension of time such as is not found in the authorities identified to me relating to the other statutory appellate provisions considered in that case law, or in the cases which establishes the common law test.
45. Counsel for the intended appellant argues that the “other person” in respect to whom consideration must be had must include any person with an interest capable of being adversely affected by a decision, so that a consideration of an injustice to the intended applicant must be present. He refers to the decision of Cain v. Francis and the linked case of McKay v. Hamlani & Anor, two decisions of the English Court of Appeal reported at [2009] 2 All ER 579, which related to the jurisdiction of the court to override a time limit in personal injury or fatal accident claims and the principles that should guide the court’s discretion in that exercise. The court under the relevant section of the English legislation had what was regarded by the court as an unfettered discretion to consider whether an extension of time should be granted and regarded the length of the delay being a factor, albeit not a deciding factor.
46. Those judgments of the Court of Appeal of England and Wales do not assist me in my deliberations, as I do not consider that the discretion conferred on the court under O. 84C to be unfettered, as it is constrained by the matters expressly provided in the rule itself. Further, those decisions were based on a special statutory jurisdiction, and the appellate court considered itself constrained in its approach as the matter of an extension of time was one for the discretion of the trial judge. Therefore it offers me little assistance in the question at hand.
47. I consider that counsel for the intended appellant is incorrect in this submission, and in my view the “other person” must be taken to mean any person other than the person making the application. The express language of O.84C r. 2(5) does not require that injustice not be done to any of the persons involved, and the construction urged ignores entirely the word “other” in the rule. It seems to me what was intended by the new rules was to require the court to balance the interests of justice, and in that exercise the interest of the intended respondent to the appeal are to be regarded as an element that must inform the discretion of the court and in respect of which the court must be satisfied that no injustice is done.
48. The type of prejudice that might arise will fall along a wide spectrum. There will be cases where there is no prejudice, except of course the fact that the judgment at first instance may be delayed in enforcement, or even where the winning party might feel that the result was likely not to be upheld in whole or in part on appeal. On the other hand, there may be cases where it is clear that the appeal is tactical, or where a respondent is unwell, elderly, or has limited recourses such that the prospect of an appeal causes personal or financial hardship. There may be individual litigation prejudice where evidence is lost through death or the unavailability of a witness.
49. In summary, I consider that a court hearing an application for extension of time under O. 84C must have regard to the following factors: –
(a) the reason for the delay and whether a justifiable and sufficient excuse has been shown noting too that in general, and having regard to the test enunciated in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd, and considered also by the Supreme Court in S. v. Minister for Justice, that a fault on the part of a legal adviser is not generally regarded as a sufficient excuse or reason for a failure;
(b) the length of the delay, noting that a short delay can relatively easily be excused;
(c) there is no express requirement that an intending appellant should have formed the intention to appeal within the relevant time, but this can be a factor;
(d) whether the appeal is arguable, or to put it in the negative, whether the attempt to engage the appellate process is arguably vexatious, frivolous or oppressive to the other party; and
(f) whether the extension of time is likely to cause prejudice to the other party, which can include litigation prejudice, where the passage of time has resulted in the loss of evidence or witnesses, but also a more general prejudice that an extension of time delays the conclusion of litigation and prevents the winning party from recovering on foot of the judgment or order, and circumstances where an appeal may be merely tactical, or is unlikely to succeed
Application to the facts: the reasons for the delay
50. The application is grounded on the affidavit of John Geary, solicitor, on behalf of the tenant. No affidavit of the tenant himself is provided. Mr. Geary did not act for the tenant before the Tribunal, but says that after the Board issued its Determination Order on 23rd June, 2015, he was “later” instructed by the appellant. He does not identify a date when this happened, and whether he was instructed within the 21 day period. It is clear that on 24th July, 2015, after the expiration of the 21-day period, he attempted to lodge an appeal directly to the Board instead of the High Court.
51. Mr. Geary in his affidavit says that the appellant was “suffering from a disability which prevented him from dealing with his affairs at the time” and exhibits a medical certificate which shows that the tenant has been under the care of his general practitioner and being treated for depression since 29th May, 2015, and that due to the medication prescribed, he was not in a position to deal with his affairs. The letter rather elusively does not confirm that as of 23rd July, 2015, the tenant was unable to deal with his affairs and contained the even more elusive comment: –
“He has requested this note to state this and confirm he continues to be under my care and on ongoing medication for the present.”
52. No affidavit from the doctor is furnished, and while the certificate is short and does identify that Mr. Keon continues to be under his care, it does not state the nature of his ongoing treatment and medication, and whether it might prevent him currently from dealing with his affairs.
53. To a large extent, however, it seems to me that the doctor’s note is irrelevant as Mr. Keon did have the benefit of legal representation at the hearing before the Tribunal and at the hearing of the motion before me, and there is no suggestion in the only evidence that I have, namely in the two affidavits of Mr. Geary, that he did not consider his client competent to give him or counsel instructions. I do not consider that the evidence before me points to an inability on the part of Mr. Keon to deal with the matter before the adjudicator, or before the Tribunal, nor is there any credible evidence that he was unable to lodge an appeal or instruct his solicitor to do so within the statutory time limit.
54. What is clear, however, from the affidavits of Mr. Geary is that he purported to lodge an appeal by the wrong process. The letter issued by the Board identified clearly the form of the appeal, and I reject any assertion on the part of counsel for the tenant that the Board encouraged Mr. Geary in his error, which was after all an error of law made by a professional. It also bears noting that Mr. Geary attempted to appeal to the deciding body itself, a matter that could not appear to any legally trained person to be appropriate in any appellate jurisdiction.
55. It is also clear that the Board in its email of 29th July, 2015 pointed out the mistake, and there is what I take to be a significant gap between the receipt of that email and the letter of 12th August, 2015, sent by Mr. Geary to the Receiver, by which the Receiver was notified that the tenant intended to appeal the determination and for that purpose to seek an order of the High Court. No explanation is offered for the delay between 29th July, 2015, and 12th August, 2015, and this is particularly significant as the letter sent by the solicitor for the tenant to the Receiver was sent after the tenant had received a letter from the Receiver of 11th August, 2015, requiring him to vacate the premises by 13th August, 2015, and informing him that the Receiver would change the locks the following day, 14th August, 2015. I am compelled to the conclusion that the solicitor for the tenant was instructed to engage with the Receiver in a meaningful way only after the threat of repossession, and I consider that the attempt to appeal was made with a view to preventing the Receiver obtaining possession on the nominated day. The particular date is also of significance in that the tenant is not in personal occupation of the Premises, and rather sublets them to students, and I consider it probable in the circumstances that the tenant sought to prevent the Receiver taking possession so as to be in a position to offer a letting to students for the college year commencing in September 2015.
56. Accordingly, I am not satisfied that a good or sufficient explanation for the delay in lodging the appeal is shown, nor that Mr. Keon formed an intention to appeal within the relevant time. However, that finding is not determinative and I turn now to consider the nature of the appeal.
The grounds of appeal
57. The grounding affidavit of Mr. Geary identifies nine grounds of appeal which may be grouped as follows: –
(a) The Tribunal erred in coming to its determination and failing to apply its “own rules” in relation to the admissibility of documents, namely that documents intended to be relied on by the parties be furnished no less than ten days prior to the hearing of the appeal.
(b) That the tenant was denied his Constitutional rights of access to the court, and that the Tribunal erred in refusing to adjourn the matter on the application of the tenant, resulting in an imbalance or inequality of representations.
(c) That the Tribunal fell into “an error of jurisdiction”, this being very broadly pleaded at ground (iv) and not further particularised.
(d) That the registration of the tenancy by the receiver was an attempt to “collapse” the tenancy rather than being done with a view to the “preservation of the tenancy” which it is argued is the purpose of the legislation.
(e) That the hearing before the Tribunal was improperly conducted by the Tribunal members who wrongly interrupted counsel, and whose interruptions and procedural failures are described as “an effrontery” to the rule of law.
(f) That no document was provided by the Receiver in support of his appointment, that no “proof of ownership” was adduced, nor was there any evidence of the “identity of the actual owner”.
58. In the first place, I note that these grounds, except perhaps (f), are more properly matters for judicial review and I have regard to the fact that on 3rd September, 2015, Binchy J. refused the ex parte application by the applicant for judicial review in proceedings bearing record number 2015 No. 205 J.R. Those pleadings were not put before me by the tenant, and I consider that points to the possibility that the grounds advanced were identical, or broadly similar, to those purported to be advanced on the appeal. I note from the order of Binchy J which was before me, that an order of certiorari was sought on the grounds the order of the Board was arrived at in “such a manner as to result in the denial of the applicant of his legal and Constitutional rights”, and that the Act 2004 was inconsistent with the Constitution and/or was operated and applied in a non-constitutional manner. There was further an application for a declaration that the proceedings before the adjudicator and the Tribunal were required to be conducted in accordance with natural and constitutional justice.
59. It seems to me that several of the grounds now sought to be advanced by way of appeal overlap with the judicial review application, and in particular ground (b), (c) and (e) are such and will, for that reason, fail. I consider that the applicant has improperly failed to adduce the pleadings which were before Binchy J.
60. Furthermore, because the alleged error in jurisdiction, (c) above, has not been particularised in the documentation before me, there is insufficient information on which I can make any judgment that the appeal on that ground is likely to succeed.
61. Accordingly, it seems to me that the primary ground or grounds on which the tenant wishes to appeal are the grounds relating to what he, in general, calls the “admissibility of documents” or matters with regard to the proof of the appointment of the Receiver and/or the entitlement of the Bank to appoint the Receiver over the assets of the landlord.
62. I am fortified in this view by the submissions made by counsel who appeared for the tenant before the Tribunal, and who also appeared in the application before me. Counsel for the tenant informed the Tribunal that he received a hard copy of the landlord’s mortgage on the day before the hearing, although he had received an electronic copy “earlier in that week”. He sought an adjournment to consider the documentation, but nowhere made a suggestion that the soft copy received in advance of the hearing was anything other than a true copy of the original. Further, his argument related to the entitlement of the Bank to appoint a receiver but not the appointment itself. That aspect of the matter was argued for some time before the Tribunal which, having arisen to consider the matter, determined that it was satisfied that it had sufficient evidence to satisfy itself that the Receiver was validly appointed. The Tribunal had previously been referred to s. 110 of the Act of 2004 that issues of title are outside the remit of the Tribunal. Note might also be had of s. 108(5) of the Land and Conveyancing Law Reform Act 2009 which provides protection to any person dealing with the receiver such that a person is not required to look behind that appointment.
63. It is noteworthy and highly significant in my view that the tenant did pay rent to the Receiver for a period of three months, that his landlord, Mr. McNamara had shown him a letter wherein it was stated that Mr. Gibbs had been appointed as Receiver and that his landlord had “openly questioned” how this might have occurred, but the doubt was not particularised in the pleadings or hearing before me. The Tribunal noted that no evidence was adduced by Mr. McNamara, the landlord, and rejected the attempt by the tenant to adduce hearsay evidence of any conversations with him. This was an entirely correct approach. It must be noted also in that context that the appeal to the High Court from a decision of the Tribunal is an appeal on a point of law, and the High Court may not engage with the factual questions raised by the tenant in his application, and the Tribunal having expressed the view that it had sufficient evidence to conclude that the Receiver was properly appointed, and noting the statutory provisions in the Act outlined above, that point of appeal cannot succeed as no point of law is engaged.
64. I consider the tenant could not succeed in the argument that the Receiver was not validly appointed, and no stateable argument on that ground was identified.
65. I consider accordingly that the tenant has not made an arguable ground and turn to consider the question of prejudice which to some extent overlaps with the merits of the appeal.
Is there prejudice to the landlord?
66. A curious and unusual element of this application is that the tenant has sought to show that he is in possession of the Premises through a different tenancy, and that he has paid rent to another person. He argues in that circumstance that the Receiver was a “trespasser” and was improperly appointed.
67. The tenant gave evidence to the Tribunal that since he ceased paying rent to the Receiver in January, 2013, after three of the monthly payments were made to him, he thereafter continued to pay rent on foot of a new lease, to a Mr. Charles Allen. In support of this assertion, the tenant furnished a document described as “a property lease”, purporting to create a 999 lease of which the landlord was stated to be Radolphus Allen Family Private Trust and the tenant stated to be John Keon. This document purports to have effected a letting of the premises for 999 years from 1st May, 2013, at what was described as a “nominal fee” of €100 per annum. A cursory examination of that document shows that it contains no operative demise.
68. Counsel sought to rely before the Tribunal on this document as evidence of the existence of a superior leasehold interest and that Mr. Keon, was paying rent to that superior landlord. No explanation was offered as how the 999-year term was created by a person other than Joseph McNamara, the freehold owner, and the landlord with whom Mr. Keon had initially dealt. The lands are unregistered freehold lands and in my view, any argument with regard to the existence of an intermediate lease, which might have entitled him to possession, was not borne out by the evidence, and is at best, fanciful.
69. In the case of an application to extend time to appeal a decision of the Board, regard must be had under O. 84C to the interest of the landlord. In this case the landlord has been prejudiced by the actions of the tenant in not paying rent and in failing to deliver up vacant possession of the Premises in accordance with the covenant in that behalf contained in the letting agreement, and following termination for non payment of rent. No rent has been paid now for almost three years, and that is of particular importance in the light of the fact that the intended appellant does not reside in the Premises, but lets it for his own commercial benefit. Furthermore the landlord has asserted, and this is not denied before the Tribunal, that the creation of the sub-tenancy was done without the landlord’s consent as was required in the letting agreement. The attempt by Mr. Keon to set up another title is a matter of considerable prejudice to the landlord, and amounts to a denial of his title. It may also be regarded as an act of forfeiture by the tenant. Any delay in concluding the process in that context is prejudicial to the property rights of the landlord.
70. There might be circumstances where the interests of the respondent which come to be considered must be balanced against other interests of the intended appellant, as for example where the intended appellant occupies a residential premises as his principle private residence, but that factor is not engaged in this case. The interest that must be balanced is the interest of the intended appellant to avail of the statutory appeals mechanism by way of an appeal to the High Court, and the proprietary interest of the landlord in the Premises in respect of which he has received no benefit for nearly three years, and where the tenant himself has gained commercial benefit, and denied his landlord’s title.
71. I must bear in mind also that section 86 of the Act of 2004 provides that rent shall to continue to be paid pending determination of a dispute before the Board. Clearly in doing so no acknowledgment can be argued to have been made with the regard to the merits of the appeal. This statutory provision guides me in my consideration of whether injustice will be done to the landlord by granting an extension of time to appeal, and the Oireachtas in my view envisaged the continuance of rent as one of the ways that the interest of the landlord can be protected.
Conclusion and summary
72. Thus it seems to me that the interests that are engaged are the proprietary rights of the landlord and the right of the tenant to avail of the statutory appeals mechanism. I am of the view that a court in determining whether to extend the time to appeal must engage the question of whether the intended appellant has an arguable grounds of appeal and I consider that the tenant has not shown any arguable ground.
73. Accordingly I consider that the intended appellant has not made out any good and sufficient reason why he should be permitted to now appeal the decision of the Tribunal and that the interests of the landlord far outweigh those of the tenant to now seek to prosecute an appeal which I consider has no stateable basis at law.
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CA195
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You are here: BAILII >> Databases >> Irish Court of Appeal >> Keon -v- Gibbs & Anor [2017] IECA 195 (04 July 2017)
URL: http://www.bailii.org/ie/cases/IECA/2017/CA195.html
Cite as: [2017] IECA 195
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Judgment
Title:
Keon -v- Gibbs & Anor
Neutral Citation:
[2017] IECA 195
Court of Appeal Record Number:
2016 55
High Court Record Number:
2015 248 MCA
Date of Delivery:
04/07/2017
Court:
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Peart J., Hogan J.
Judgment by:
Hogan J.
Status:
Approved
Result:
Dismiss
THE COURT OF APPEAL
Neutral Citation Number: [2017] IECA 195
Record No. 2016/55
Finlay Geoghegan J.
Peart J.
Hogan J.
BETWEEN/
JOHN KEON
align=”right”>APPLICANT/
APPELLANT
– AND –
MARK GIBBS (IN HIS CAPACITY AS RECEIVER OVER CERTAIN ASSETS OF JOE McNAMARA)
– AND –
PRIVATE RESIDENTIAL TENANCIES BOARD
RESPONDENTS
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of July 2017
1. In a reserved judgment delivered on the 21st December 2015 Baker J. refused to extend the time for the purposes of the s. 123(3) of the Residential Tenancies Act 2004 (“the 2004 Act”) so as to permit the appellant, Mr. Keon, to appeal on a point of law against the determination order which had been previously made by the Private Residential Tenancies Board on the 23rd June 2015: see Keon v. Gibbs [2015] IEHC 812. In her judgment delivered on that day Baker J. refused to extend the time and the appellant has now appealed against that decision of the High Court to this Court.
2. Before considering the legal issues which now arise in this appeal, it is necessary first to set out the factual background. Mr. Keon was the tenant of an apartment premises at 14 Dún na Carraige, Salthill, Co. Galway under a letting agreement made on the 6th June 2012 between Joe McNamara as landlord and himself as tenant for the fixed term of two years from the 6th June 2012. The monthly rent was €400.00, which rent was payable in advance.
3. On the 12th April 2006 the landlord mortgaged the premises to IIB Home Loans Ltd. (now KBC Bank) as a security for the loan which the Bank had advanced to purchase the premises. Following default by the landlord, the Bank appointed the first named respondent, Mr. Gibbs, as receiver over the assets secured by the mortgage, including the apartment at 14 Dún na Carriage. The receiver then notified Mr. Keon of his appointment on the 5th October 2012 and directed that that rent be paid to him from November 2012 onwards. Mr. Keon did in fact make three payments of rent on the 5th November 2012, on the 7th December 2012 and on the 8th February 2013, but he has not paid any rent since that date.
4. In March 2013 the receiver informed Mr. Keon that he intended to sell the premises and required vacant possession for that purpose. Mr. Keon then informed the receiver that the property had been sub-let to some University students and he requested that they be allowed to remain in possession until they had finished their examinations in May. Mr. Keon did not, however, deliver possession in May 2013 as – according to the receiver, at least – he had promised to do so.
5. In January 2014 the receiver served a statutory form claiming that Mr. Keon had failed in his obligations qua tenant by reason of the non-payment of rent and the unlawful subletting of the premises without the consent of the landlord. The receiver then served a fourteen day warning notice demanding rent in accordance with s. 67(3) of the 2004 Act. On the 10th February 2014 he served a notice of termination under s. 34 of the 2004 Act. Following some correspondence with Mr. Keon’s solicitor – in which the validity of Mr. Gibbs’ appointment as receiver was questioned – it became clear that vacant possession was not going to be delivered up. The receiver then referred the matter to the Board for determination.
6. Following an initial adverse adjudication by an adjudicator on 15th July 2014, Mr. Keon duly appealed by notice under s. 100 under the 2004 Act. A hearing date was set for the 22nd May 2015 at which the parties were legally represented. At that hearing Mr. Keon sought an adjournment, which application was refused. The appeal then proceeded to hearing, and the Tribunal delivered a determination on the 26th June 2105, by which it directed Mr. Keon deliver up vacant possession of the apartment premises within fourteen days and pay the sum of €9,992.50 in respect of arrears of rent and €1,000.00 in damages, such sums to be paid by specified instalments.
7. The Tribunal forwarded a formal determination order dated the 26th June 2015 to the parties. The order contained a recital to the following effect:
“This determination order shall, on expiry of the period of twenty-one days from the date of issue, become binding on the parties concerned, unless an appeal is made by any of the parties directly to the High Court on a point of law before then, pursuant to s. 123 (3) of the Residential Tenancies Act 2004”.
8. By this stage Mr. Keon had retained a new firm of solicitors. By letter dated the 24th July 2015 Mr. Keon, through his new firm of solicitors, purported to lodge a notice of appeal directly with the Board. The Board replied on 29th July 2015 and it pointed out that a finding of the Tribunal could not be appealed other than to the High Court. Some two weeks later his solicitors wrote to the receiver indicating that Mr. Keon intended seeking to appeal the determination order to the High Court, and that he was also considering an application for judicial review of the decision.
9. On the 19th August 2015 this application was brought by motion to extend time for service of a notice of appeal. On the 3rd September 2015 Binchy J. refused Mr. Keon leave to apply for judicial review of the decision of the Tribunal.
The decision of the High Court
10. In her judgment Baker J. considered that the application to extend time fell to be considered under Ord. 84C of the Rules of the Superior Courts, the provisions of which govern the procedures to be adopted for appeals from decisions of statutory bodies. She noted that Ord. 84C r. 2(5)(a) prescribes a notice period of 21 days, subject to any provision to the contrary in the relevant enactment. Section 123(3) of the 2004 Act provides, however, in relation to a determination order issued by the PRTB that:
“any of the parties concerned may appeal to the High Court within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.”
11. Section 123(8) of the 2004 defines the “relevant period” as 21 days beginning on the date of issue of the determination order to the parties.
12. Baker J. noted, however, that the provisions of Ord. 84C r. 5(b) provide as follows:
“within such further period as the Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter.”
13. Baker J. then went on to consider whether (i) Mr. Keon had established the existence of a good and sufficient reason and (ii) whether such an extension of time would result in an injustice to a third party. In this regard Baker J. applied the well known Éire Continental test (Éire Continental Trading Company Ltd v. Clonmel Foods Ltd [1955] I.R. 170) where the Supreme Court identified a three stage test that requires an applicant to show, first, that he or she had a bona fide intention to appeal within the relevant time period; second, that there was an element of mistake, and, third, the existence of an arguable ground for appeal.
14. Baker J. also pointed to the comments of Hardiman J. in G.K. v. Minister for Justice [2002] 2 I.R. 418, 423 where he stated:
“If a claim is manifestly unarguable there can normally be no good or sufficient reason for permitting it to be brought, however slight the delay requiring the exercise of the court’s discretion, and however understandable it may be in particular circumstances. The statute does not say that the time may be extended if there were ‘good and sufficient reason for the failure to make the application within the period of fourteen days’. A provision in that form would indeed have focussed exclusively on the reason for the delay, and not on the underlying merits. The phrase actually used ‘good and sufficient reason for extending the period’ does not appear to me to limit the factors to be considered in any way and thus, in principle, to include the merits of the case.
On the hearing of the application such as this it is of course impossible to address the merits in the detail of which they would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration of an arguable case. In addition, of course, the question of the extent of the delay beyond the fourteen day period and the reasons if any for it must be addressed.”
15. Baker J. next noted that application was grounded on the affidavit of Mr. John Geary, the solicitor for the applicant, although Mr. Keon had not himself personally sworn an affidavit explaining the delay. Mr. Geary did not act for the tenant before the Tribunal, but he stated that after the Board issued its determination order on 23rd June 2015, he was “later” instructed by the appellant. As Baker J. observed, Mr. Geary does not identify a date when this happened, and whether he was, for example, instructed within the twenty one day period. It is, however, clear that on 24th July 2015, after the expiration of the twenty one day period, he attempted to lodge an appeal directly to the Board instead of the High Court.
16. Baker J. then examined the explanations for the delay, but she did not think that any of these explanations were satisfactory.
17. So as the merits of the application itself were concerned, Baker J. noted that the majority of the grounds related to an alleged want of fair procedures. Much of this objection appears to have been directed towards the Tribunal’s decision to admit documents establishing the appointment of the receiver and the entitlement of the Bank to appoint a receiver over the assets of the landlord.
18. Baker J. then concluded:
“That aspect of the matter was argued for some time before the Tribunal which, having risen to consider the matter, determined that it was satisfied that it had sufficient evidence to satisfy itself that the Receiver was validly appointed. The Tribunal had previously been referred to s. 110 of the Act of 2004 that issues of title are outside the remit of the Tribunal. Note might also be had of s. 108(5) of the Land and Conveyancing Law Reform Act 2009 which provides protection to any person dealing with the receiver such that a person is not required to look behind that appointment.
It is noteworthy and highly significant in my view that the tenant did pay rent to the Receiver for a period of three months, that his landlord, Mr. McNamara had shown him a letter wherein it was stated that Mr. Gibbs had been appointed as Receiver and that his landlord had “openly questioned” how this might have occurred, but the doubt was not particularised in the pleadings or hearing before me. The Tribunal noted that no evidence was adduced by Mr. McNamara, the landlord, and rejected the attempt by the tenant to adduce hearsay evidence of any conversations with him. This was an entirely correct approach. It must be noted also in that context that the appeal to the High Court from a decision of the Tribunal is an appeal on a point of law, and the High Court may not engage with the factual questions raised by the tenant in his application, and the Tribunal having expressed the view that it had sufficient evidence to conclude that the Receiver was properly appointed, and noting the statutory provisions in the Act outlined above, that point of appeal cannot succeed as no point of law is engaged.
I consider the tenant could not succeed in the argument that the receiver was not validly appointed, and no stateable argument on that ground was identified.”
19. Baker J. then observed that the landlord’s interests would be prejudicially affected if time were extended. She concluded thus:
“Accordingly, I consider that the intended appellant has not made out any good and sufficient reason why he should be permitted to now appeal the decision of the Tribunal and that the interests of the landlord far outweigh those of the tenant to now seek to prosecute an appeal which I consider has no stateable basis at law.”
20. As I have already indicated, the appellant has sought to appeal this decision on its merits. But before considering this question, it is, however, necessary to examine at least in passing a jurisdictional issue which was not directly addressed in the High Court. This was in large part because as counsel for the receiver, Mr. Mooney, informed us, his client wanted that Court to consider simply the merits of the application to extend time rather than address a jurisdictional question which – depending on the way it was resolved – might, in turn, raise a separate constitutional issue.
21. It was on this basis, therefore, that the Court determined at the outset of the appeal in an ex tempore ruling delivered by Finlay Geoghegan J. to proceed with the merits of the appeal to extend time and that it would only finally determine the jurisdictional issue in the event that it proved necessary to do so. In view of the clear conclusions which I have reached (and which I will detail presently) that the appellant has not presented any arguable grounds of appeal so that it would, in any event, be inappropriate to extend time, it is unnecessary to reach any concluded view on this jurisdictional issue. I feel nonetheless that it is important to draw attention to this jurisdictional issue as it may assume an importance in any subsequent case.
The jurisdictional issue: does the High Court have any power to extent time under s. 123 of the 2004 Act?
22. Section 123(3) of the 2004 Act provides:
“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.”
23. The phrase “relevant period” is then defined by s. 123(8) of the 2004 Act as meaning “the period of 21 days beginning on the date that the determination order concerned is issued to the parties.”
24. Perhaps the first thing to note is that there is nothing in s. 123 of the 2004 Act which indicates that this statutory time limit might be extended under any circumstances. It is true that in Law Society of Ireland v. Tobin [2016] IECA 26 this Court held that it enjoys an inherent jurisdiction to extend time where the relevant statutory provision permitting an appeal did not expressly provide for such a power. This, however, was in the context of an appeal from the High Court to this Court, where the right of appeal is constitutionally guaranteed by Article 34.4.1 unless regulated or excepted by law. As Finlay Geoghegan J. said in that case:
“For the reasons outlined above, our view is that s. 12 of the [Solicitors (Amendment) Act 1960], as amended is not a section which clearly and unambiguously precludes a person at least applying to exercise his constitutional right of appeal after 21 days or the jurisdiction of this Court to consider such an application. Section 12 by the words used does not expressly exclude the bringing of an appeal after the specified time as do the provisions of the statute of limitations and other statutory provisions with time limits to which we were referred.
Unless excluded by s.12 the Court has an inherent jurisdiction to consider an application to extend time to pursue an appeal to which s.12 of the 1960 Act applies. Such jurisdiction derives from the implied constitutional principles of basic fairness of procedures which underlie the well known decisions in relation to the court’s inherent jurisdiction to dismiss for delay. In this instance, the jurisdiction exists in order that a party who by mistake or other justifiable reason misses the 21 day period , may not be unfairly precluded from pursuing a constitutional right of appeal against an order of the High Court of the type to which s. 12 of the 1960 Act applies.”
25. The present case is quite different, since – unlike the position in Tobin – the right of appeal to the High Court from the Tribunal is entirely dependent on statutory vesture. If, however, the Oireachtas has not provided for a power to extend time in this particular context, an issue must arise as to whether there is such a power at all under any circumstances, no matter what good reason for the delay may be advanced by any putative appellant.
26. The second thing to note is that the High Court proceeded on the basis that Ord. 84C independently conferred a power to extend time. I am not, with respect, convinced, however, that this premise is altogether correct. It is true that Ord. 84C, r. 5(b) does provide for a power to extend time, but this is expressed to be contingent on “any provision to the contrary in any relevant enactment.” If the proper construction of s. 123(3) of the 2004 Act is that it provides for a strict 21 day time limit which is not capable of extension, then this would amount to a “provision to the contrary” such as would negative the potential operation of Ord. 84C, r. 5(b). Certainly, if this is the proper construction of s. 123(3), then the scope of that appellate jurisdiction could not be changed or enlarged by Rules of Court: see, e.g., The State (O’Flaherty) v. Ó Floinn [1954] I.R. 295; Rainey v. Delap [1988] I.R. 470. A further consideration is that in view of the provisions of Article 15.2.1 of the Constitution (which vests exclusive legislative power in the Oireachtas) then, as I observed in Gokul v. Aer Lingus plc [2013] IEHC 432:
“any such change could only be brought by primary legislation enacted by the Oireachtas and could not be done not simply by Rule of Court….”
27. Given, however, the clear views which I have formed regarding the underlying merits of any application for an extension of time (assuming for this purpose in the appellant’s favour that such a jurisdiction exists), then beyond drawing attention to these issues, it is unnecessary to express any concluded view on these jurisdictional questions.
Whether time should be extended
28. Even if it were to be supposed that the High Court did in fact enjoy a jurisdiction to extend time for the purposes of s. 123(3) of the 2004 Act, it is plain that this is a case where such a jurisdiction should not be exercised. It is not even necessary for present purposes to pronounce on whether Baker J. was correct in respect of all the various indicia she indicated should be taken into account as guiding the Court in determining whether to extend time. It is sufficient simply to focus on a critical factor so far as the present appeal is concerned, namely, whether the appellant can point to the existence of even arguable grounds.
29. Since at least the decision of the Supreme Court in Éire Continental in 1952 the courts have consistently insisted – irrespective of the precise statutory context – that any appellant seeking an extension of time within which to appeal must demonstrate the existence of arguable grounds. The reason for this requirement is obvious and scarcely needs elucidation, because in the absence of arguable grounds any such appeal will prove to be futile. As Hardiman J. pointed out in GK, there is simply no point, therefore, in granting an extension of time where any such appeal has no reasonable prospect of success.
Can the appellant point to the existence of arguable grounds?
30. As I have already noted, the scope of the appeal under s. 123(3) of the 2004 Act is confined to a point of law. What, then, is the point of law which has been identified so far as the present appeal is concerned?
31. It must be recalled that the appellant’s failure to pay rent and to have sub-let the premises is not in dispute. It is true that the fundamental complaint before the Tribunal appears to relate to the validity of the appointment of the receiver, but the Tribunal found that the receiver had been validly appointed. Besides, the appellant did pay rent on no less than three separate occasions to the receiver, a factor which Baker J. quite understandably found to be highly relevant. In any event, as Baker J. pointed out, it is not clear how that issue as to the validity of the appointment of the receiver would really be relevant given that s. 108(5) of the Land and Conveyancing Law Reform Act 2009 “provides protection to any person dealing with the receiver such that a person is not required to look behind that appointment.”
32. Beyond this there were a series of rather generalised complaints that the Tribunal had breached fair procedures, not least in the manner by which it had received evidence in relation to the receiver’s appointment. It may be that in an appropriate case a failure to observe fair procedures could amount to a point of law which could be raised in the course of a statutory appeal as opposed to an application for judicial review: see, e.g., Teehan v. Minister for Communications [2008] IEHC 194 and Koczan v. Financial Services Ombudsman [2010] IEHC 407. It is not necessary for present purposes to express any views on this issue. But even if this were so, the appellant has not advanced any ground of substance – beyond that, with respect, which amounts to purely generalised complaints – in relation to the hearing before the Tribunal.
33. It follows, therefore, that no arguable ground of appeal for the purposes of s. 123(3) has been advanced in relation to this issue either.
Conclusions
34. In summary, therefore, I am of the view that even if the High Court has in fact a jurisdiction to extend time, the wording of s. 123(3) of the 2004 Act notwithstanding, this is not a case where such a jurisdiction should be exercised. Before time could be extended, it would be necessary for the appellant to demonstrate at least that he had arguable grounds of appeal, as there is no point in extending time to enable an appellant to pursue an otherwise hopeless appeal.
35. In my view, however, the appellant cannot advance such grounds. Beyond generalised complaints as to the validity of the appointment of the receiver and the procedures followed by the Tribunal, the appellant cannot point to the existence of any arguable grounds of appeal that might otherwise qualify as a point or points of law for the purposes of s. 123(3) of the 2004 Act.
36. It is thus clear that Baker J. correctly refused to grant the appellant an extension of time by reason of the fact that no arguable grounds of appeal had been advanced before her. It is, accordingly, unnecessary to express a view on any of the other factors to which Baker J. had regard for this purpose or, indeed, for that matter to determine whether in view of the wording of s. 123(3) of the 2004 Act there is a jurisdiction to extend time at all under any circumstances.
37. It follows, therefore, that for these reasons I would dismiss the appeal.
H308
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Marwaha -v- Residential Tenancies Board [2016] IEHC 308 (07 June 2016)
URL: http://www.bailii.org/ie/cases/IEHC/2016/H308.html
Cite as: [2016] IEHC 308
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Judgment
Title:
Marwaha -v- Residential Tenancies Board
Neutral Citation:
[2016] IEHC 308
High Court Record Number:
2015 221 MCA
Date of Delivery:
07/06/2016
Court:
High Court
Judgment by:
Barrett J.
Status:
Approved
Neutral Citation: [2016] IEHC 308
THE HIGH COURT
2015/221/MCA
BETWEEN:
AJAY MARWAHA
align=”right”> Appellant
– and –
RESIDENTIAL TENANCIES BOARD
Respondent
JUDGMENT of Mr Justice Max Barrett delivered on 7thJune, 2016.
Part 1: Background
1. Following complaint by the landlord, an adjudicator appointed by the Residential Tenancies Board determined, after a hearing on 9th December, 2014, that Mr Marwaha had been served with a valid notice of termination on 29th October, 2014, arising from the non-payment of rent. The adjudicator directed that Mr Marwaha vacate the premises within 28 days of the adjudication. He also directed the payment of (a) certain outstanding rent and (b) an amount by way of damages for breach of the rent-payment obligation.
2. Mr Marwaha appealed this adjudication to a Tenancy Tribunal. Following a hearing of 15th May, 2015, the Tribunal, in a determination order of 3rd July, 2015, rejected the appeal, concluded that the notice of termination of October 2014 was valid, and directed that Mr Marwaha vacate the premises within 28 days and pay certain outstanding rent. It is against this determination order that Mr Marwaha brings the within s.123 appeal. His grounds of appeal are eight-fold. Thus he maintains that:
(1) the Residential Tenancies Board (he equates the Board and Tenancy Tribunal) failed to act in accordance with s.121 of the Act of 2004;
(2) the decision was made against the weight of evidence;
(3) the Residential Tenancies Board failed to take into account that he had been a tenant dwelling in his apartment for more than 10 years;
(4) no tribunal acting reasonably could have made the decision that it did, having regard to the evidence;
(5) the Board failed to take into account that no physical evidence of service of the notice of termination was produced before it;
(6) the Board failed to take into account that no witness was produced who was present while delivering the termination documents;
(7) the decision overruled the Act of 2004, as amended [sic]; and
(8) as the court understands this ground, Mr Marwaha’s legal rights as tenant were not respected in accordance with law.
Part 2: Some Applicable Law
A. General.
3. Before considering the various grounds of appeal raised by Mr Marwaha, the court turns first to consider various cases to which it has been referred by counsel for the Board in order more clearly to identify what a s.123(3) appeal embraces, those cases being Canty v. Private Residential Tenancies Board [2007] IEHC 243, Fitzgibbon v. Law Society of Ireland [2014] IESC 48, Tully v. Private Residential Tenancies Board [2014] IEHC 554, and Doyle v. Private Residential Tenancies Board [2015] IEHC 724.
B.Canty v. Private Residential Tenancies Board
4. This was a s.123(3) appeal in which Laffoy J.made the following observation as to the role of the court on appeal, under the heading “Item 13”:
“In effect, what the applicant is asking the court to do is to review the decision of the Tribunal on the merits. As counsel for the Board point out, that is not permissible on an appeal under s.123(3). On an appeal under that provision it is not open to the court to set aside a finding of fact made by the Tribunal unless there was no evidenceto support it. Counsel for the Board referred the court to the dictum of Finlay C.J. in O’Keeffe v. AnBordPleanála [1993] 1 IR 39 (at p.72) in which he stated:
“I am satisfied that in order for an applicant for judicial review to satisfy a Court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision-making authority had before it no relevant material which would support its decision.”
That passage, in my view, certainly outlines the appropriate principle in the judicial review context. Perhaps more apposite for present purposes is a statement of Kenny J., speaking for the Supreme Court, in Mara (Inspector of Taxes) v. Hummingbird Limited [1982] 2 ILRM 421 in reference to findings of fact in a case stated by an appeals commissioner under the Income Tax Act, 1967. Having pointed out that a case stated consists in part of findings of fact on questions of primary fact, Kenny J. stated that the findings on primary facts should not be set aside by the court unless there was no evidence whatever to support them. That statement was approved of by the Supreme Court in the context of an appeal under s.300(4) of the Social Welfare (Consolidation) Act, 1981 in Henry Denny& Sons (Ireland) Limited v. Minister for Social Welfare [1998] 1 IR 34 (at p.47).”
5. Notably, counsel in Canty clearly considered that the s.123 procedure was akin to a judicial review whereas Laffoy J., consistent with a trend in the case-law which the court returns to in its consideration of Tully later below, thought it had more in common with a case stated. The form and nature of appeals, including s.123 appeals and, to a lesser extent, the difference between them and judicial review applications, was subsequently considered by Clarke J. in Fitzgibbon, on which see below.
C. Fitzgibbon v. Law Society of Ireland [2014] IESC 48
6. In his judgment in Fitzgibbon, a case in which a solicitor was challenging certain sanctions imposed on her by the Law Society, Clarke J. analysed in some detail the nature of a de novo appeal, an appeal on the record, an appeal against error, and an appeal on a point of law. The reader is referred to that judgment for the nuances of Clarke J.’s analysis. Table 1(overleaf)seeks to identify in summary form the principal differences that Clarke J perceives to arise between the various categories.
7. Clarke J. does not seek in Fitzgibbon to engage in the “difficult but important task” (para.8.1) of defining the precise boundaries of judicial review. Even so, it is perhaps notable that the only critical difference he expressly identifies between an appeal on a point of law and judicial review is that “[I]t must be assumed that, by conferring a right of appeal, the Oireachtas intended that some greater review is permitted than that which would have applied, in the context of judicial review”(para.8.2). In practice, it does seem that the boundary between on the one hand (in an appeal on a point of law) identifying an error of law in the determination or process of determination of a first-instance decision and, on the other hand (in a judicial review application) considering the procedural or substantive lawfulness of a challenged decision, is oftentimes blurred. It is not for nothing that what is ostensibly a judicial review application regularly looks and sounds, at hearing, like an appeal on a point of law. In effect, if not in substance, the two are often similar. Indeed, the lesson that this Court respectfully takes from Clarke J.’s comprehensive analysis in Fitzgibbon is that, given the sometimes nuanced differences that he identifies between various forms of appeal, and the oftentimes elusive distinction in practice between an appeal on a point of law and a judicial review, the law in this regard might helpfully be simplified.Is there perhaps a case for merging appeals against error, appeals on a point of law and judicial review into an omnibus avenueto relief, leaving but three clear-cut categories of appeal, all readily understood and offering clear remedies: de novo appeals, appeals on the record, and an omnibus appeal against error, suitably defined? Perhaps. But that issue is for another place and time, and in truth is not a matter that can properly be resolved by the courts. For the purposes of this judgment, suffice it to note that the observations of Clarke J. in Fitzgibbon succinctly identify the law as to how to this Court is to proceed in this appeal.
D. Tully v. Private Residential Tenancies Board
8. Tully was another s.123(3) appeal. It is of interest because in that case Keane J., following a consideration of applicable case-law agreed, at para.20, with, inter alia, the observation of McKechnie J. in Deely v. The Information Commissioner [2001] 3 IR 439. 452, that “There is no doubt but that when a court is considering only a point of law, whether by way of restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles.” Keane J. also agreed with the approach taken by Laffoy J. in the above-quoted extract from her judgment in Canty that, by reference to the decision in Mara, it was more correct to treat an appeal on a point of law as akin to a case stated than a judicial review (as appears to have been contended by counsel in that case). Indeed Keane J., at para.20, refers to Canty as being “in common with the present case [Tully]…an appeal by way of case stated under s.123”.
9. It is clear from Keane J.’s analysis in Tully that there is aline of case-law that considers a case stated to be akin to an appeal on a point of law. As to the separate matter of the distinction between (a) an appeal on a point of law and(b) a judicial review, which Keane J. did not have to consider,this Court would refer to the points made above and would but add that(i) the fact that a case stated would be treated as akin to an appeal on a point of law, and (ii) the border between an appeal on a point of law and a judicial review is uncertain in principle and oftentimes unrecognisable in practice, would not have as its necessary result in logic or in law that (iii) a case stated is akin to a judicial review.That is an association fallacy which can quickly be disproved by means of Euler’s science.
E.Doyle v. Private Residential Tenancies Board
10. Doyle was yet another s.123(3) appeal. Baker J., in her judgment in that case, refers, at 4, to “[t]he distinction between an appeal on a point of law created by a statutory appeal mechanism and a judicial review [being]…one in respect of which there is some judicial authority, but the authorities point to some difficulty in defining the exact line of demarcation between them”. Baker J. then proceeds to consider, inter alia, Fitzgibbon, Mara, Deely, and Canty. When it comes to Fitzgibbon, Baker J. refers to the above-quoted observation of Clarke J. in which he propounds that it must be assumed that, whenit confers a right of appeal on a point of law, the Oireachtas intends that some greater review is permitted than that which would have applied, in the context of judicial review. Addressing this aspect of matters, Baker J. elaborates as follows, at 8:
“19. I consider that this dicta points to the proposition that when the Oireachtas provides a statutory right of appeal on a point of law, it must have intended some greater degree of court involvement with the decision than the perhaps more constrainedapproach taken by a court on judicial review. The distinction does allow a court hearing an appeal on a point of law to set aside a decision within the jurisdiction where perhaps the evidence was sufficient to support a finding but where the decision was vitiated by legal error. It may also not involve an element of curial deference in a suitable case.
20. The appeal on a point of law, then, gives a wider scope to a court to reverse or vary a decision of the body at first instance, and while that is not to say that the court will set aside a finding of fact, more important for present purposes, it does suggest that a court hearing a statutory appeal may set aside a finding which arises from an incorrect interpretation of the law or of legal documents, including contractual documents which bear on the dispute, or a mixed question of law and fact.”
11. The court notes Baker J.’s reference to “the perhaps more constrained approach taken by a court on judicial review” and the implicit suggestion which this observation appears to entail that, in reality, a judicial review can be as rigorous as an appeal on a point of law, with the result that it is not always easy to distinguish clearly between the practical operation of the two. That aside, as can be seen from Table 1, all of the above-quoted text is consistent with Clarke J.’s observations in Fitzgibbon, except as regards the additional gloss as to curial deference.
12. In this last regard, i.e. when it comes to the issue of curial deference, there appears to be a divergence between the obiter observations of Clarke J. in Fitzgibbon and those of Baker J. in Doyle. When Clarke J., in Fitzgibbon, considers an ‘appeal against error’ he spends some time emphasising the need for curial deference by reference to such ‘old reliable’ precedents in this regard as the observations of Hamilton C.J. in Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare [1998] 1 IR 34, 37-8, and those of Keane C.J. in Orange Communications Ltd. v. Director of Telecommunications Regulation [2000] 4 IR 136, 185. When he then moves on to an ‘Appeal on a Point of Law’, Clarke J. states, at para.7.4 of his judgment, that “[A] higher degree of deference, so far as the facts are concerned, is paid by the appellate body to the decision of the first instance body in an appeal on a point of law only, as opposed to an appeal against error.” Thus Clarke J. appears to envision a heightened degree of curial deference in the context of an appeal on a point of law whereas Baker J. appears to contemplate that a lower degree of curial deference may, at least sometimes, be merited. The issue presenting between their judgments in this regard does not arise for resolution in the within case. This Court would but note that no notion of curial deference requires that a judge ever operate as a judicial jobsworth, sheathing the sword of justice within the scabbard of deference.
F. An Attempted Synthesis of Principle
13. What principles can be drawn from the foregoing as to the court’s role in the within appeal? Four key principles can perhaps be drawn from the above-considered case-law:
(1) the court is being asked to consider whether the Tenancy Tribunal erred as a matter of law (a) in its determination, and/or (b) its process of determination;
(2) the court may not interfere with first instance findings of fact unless it finds that there is no evidence to support them;
(3) as to mixed questions of fact and law, the court (a) may reverse the Tenancy Tribunal on its interpretation of documents; (b) can set aside the Tenancy Tribunal determination on grounds of misdirection in law or mistake in reasoning, if the conclusions reached by the Tenancy Tribunal on the primary facts before it could not reasonably be drawn; (c) must set aside the Tenancy Tribunal determination, if its conclusions show that it was wrong in some view of the law adopted by it.
(4) even if there is no mistake in law or misinterpretation of documents on the part of the Tenancy Tribunal, the court can nonetheless set aside the Tribunal’s determination where inferences drawn by the Tribunal from primary facts could not reasonably have been drawn
14. These principles do not fall to be applied in a vacuum; nor do they give the court some free-wheeling authority to embark upon a consideration of the Tenancy Tribunal’s determination. Rather they fall to be applied by the court in the context of the various grounds of appeal raised by Mr Marwaha, to which the court now turns.
Part 3: Mr Marwaha’s Grounds of Appeal
A. General.
15. The bulk of Mr Marwaha’s submissions at the hearing of this appeal comprised a re-threshing of the facts that he raised before the Tenancy Tribunal concerning how he has been, by his reckoning, unfairly ‘picked upon’ by his landlord. These are matters that – however regrettable their occurrence, if they in fact occurred – the court cannot consider in an appeal of the present nature. The court turns therefore to the grounds mentioned in Mr Marwaha’s notice of appeal.
A. Failure to Comply with Section 121?
16. Section 121(1) requires, so far as relevant to these proceedings, that an adjudicator’s adjudication and a Tenancy Tribunal determination shall be committed to writing by the Board and issued to the parties concerned. Section 121(2) makes provision as to what a determination order shall contain. Section 121(3)-(8) makes incidental provision. The Board has complied with these provisions, evidence has been put before the court that the requisite documentation was despatched, and patently Mr Marwaha has received the documentation as that documentation formed the basis of his appeal to the Tenancy Tribunal and his appeal to this Court. So, as a matter of fact, s.121(1) has been complied with and no point of law presents.
B. Determination Against Weight of Evidence.
17. Having regard to the bases identified above in which the court could now interfere with the Tenancy Tribunal’s determination, there is no basis presenting. It is not that there is some basis there which the court is rejecting: there is no basis presenting. The Tenancy Tribunal identified that there was a non-payment of rent, looked to the substance of the notice of termination, found (correctly as it happens) that the notice was valid in law, and proceeded accordingly.
C. Failure to take Account of Length of Tenancy?
18. The duration of Mr Marwaha’s tenancy is, with every respect, an irrelevance in the context of the within proceedings. Because the Tenancy Tribunal was satisfied that Mr Marwaha was in breach of his rent-payment obligations, a 28-day notice of termination fell to be served, and was.
D. Evidence Did Not Support Determination?
19. See the court’s answer to B.
E. Absence of Evidence of Service?
20. Under s.6(1)(b) of the Act of 2004, notice of termination may be served by leaving it at the address at which the addressee ordinarily resides. As a matter of prudence, a landlord might wish to send a notice of termination by post and retain a certificate of postage. But there is no requirement that this be done. The issue of service was raised before the Tenancy Tribunal; it accepted the evidence of the landlord’s agent that good service of notice had been effected under s.6(1)(b). This it was entitled to do; there was a sound evidential basis for it to do so;and there is no error of any nature arising in this regard.
F. No Witness to Service?
21. See the court’s answer to E.
G. Decision Overruled Act of 2004?
22. The court does not know what this means. If it is intended to suggest that there was some error in law on the part of the Tenancy Tribunal, the court does not see any such error presenting.
H. Legal Rights as Tenant Not Respected?
23. The Tenancy Tribunal considered the termination of Mr Marwaha’s tenancy to be lawful. There is no point of law presenting as regards this or any other aspect of the Tenancy Tribunal’s determination.
Part 4: Joining the Landlord
24. Before proceeding to its final conclusion, the court would note that it appears contrived and contrary to natural justice that the landlord who owns the property in which a tenant dwells, and who has a direct interest in the outcome of an appeal such as this, should be reduced, as here, to the status of uninvolved spectator in the well of the courtroom while, but a few feet away, the Residential Tenancies Board and the tenant joust before the judge. As the court has, in this case, reached a conclusion that is adverse to Mr Marwaha, and doubtless welcome to the landlord, the fact that the latter is not a notice-party has no practical consequence here. Nor has the failure to join the landlord had any bearing on the court’s reasoning. Even so, it is not appropriate that the landlord was not joined to these proceedings.
Part 5: Conclusion
25. Mr Marwaha impressed the court as a soft-spoken gentleman. He considers himself to have been treated unfairly, perhaps even with some discourtesy, and it is to be regretted that he feels this way. The lot of a tenant is not an easy one,and likelyany of us who have lived in rented premises have tales galore to recount. The court trusts that the extra time it has allowed Mr Marwaha between its indication at the end of the hearing as to what its decision would be, and the delivery of this reserved judgment, has facilitated him in finding alternative accommodation. However, the court must do right by law and, in fairness to the Residential Tenancies Board, andindeed to the landlord affected, Mr Marwaha has identified no basis on which this Court could make any order upsetting the determination of the Tenancy Tribunal.As a consequence, thecourt must regretfully reject Mr Marwaha’s appeal.
Table 1
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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Murray -v- Budds & ors [2017] IESC 4 (02 February 2017)
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Cite as: [2017] IESC 4
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Judgment
Title:
Murray -v- Budds & ors
Neutral Citation:
[2017] IESC 4
Supreme Court Record Number:
91/15
Court of Appeal Record Number:
2014 235 COA
Date of Delivery:
02/02/2017
Court:
Supreme Court
Composition of Court:
Denham C.J., O’Donnell Donal J., McKechnie J., MacMenamin J., Laffoy J., Dunne J., O’Malley J.
Judgment by:
Denham C.J.
Status:
Approved
Result:
Appeal dismissed
THE SUPREME COURT
Appeal No. 91/15
Denham C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Laffoy J.
Dunne J.
O’Malley J.
Between/
Martin Murray
align=”right”>Plaintiff/Appellant
and
Conan P. Budds, Solicitor and Anthony T. Hanahoe,
Terence Hanahoe and Michael E. Hanahoe,
trading as Michael E. Hanahoe, Solicitors
Defendants/Respondents
Judgment delivered the 2nd day of February, 2017 by Denham C.J.
1. This is an appeal, upon which leave was granted by the Court, brought by Martin Murray, plaintiff/appellant, who is referred to as “the plaintiff”.
2. Conan P. Budds and Anthony T. Hanahoe, Terence Hanahoe and Michael E. Hanahoe, trading as Michael E. Hanahoe Solicitors, the defendants/respondents, are referred to as “the defendants”.
3. The Court determined that the plaintiff had raised an issue of general public importance, being as to whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract, in which the particulars of loss and damage claimed are worry and stress short of a recognised physical injury, should be treated as a personal injury action, subject to the statutory limitation period applicable to personal injury actions. The Court granted leave to the plaintiff to appeal to this Court on that issue.
Background
4. The plaintiff retained the services of the defendants to represent him in criminal proceedings.
5. I gratefully adopt the background facts as described by Peart J., in the Court of Appeal judgment of the 19th November, 2015.
6. The plaintiff was charged with possession, with intent to supply, of a significant quantity of heroin. He was convicted of that offence on the 11th February, 1999, and received a seven year sentence of imprisonment, from which he was released in September, 2004. The plaintiff was unsuccessful in two separate appeals against his conviction to the Court of Criminal Appeal. In 2000 his first appeal was based on a number of alleged errors on the part of the trial judge. In 2005, his second appeal heard after his release from prison, was based on an alleged failure of his solicitor to adequately and properly prepare for his trial, and the alleged failure of both solicitor and counsel to pay heed to his instructions during the course of his trial. However, neither of his appeals succeeded.
7. The plaintiff issued a plenary summons in February, 2005, claiming damages for negligence and breach of contract by the defendants in their provision of legal services prior to and during his criminal trial.
8. The defendants entered a full defence.
Two Motions
9. The defendants issued a motion seeking to dismiss the plaintiff’s claim as (i) statute barred; (ii) an abuse of process; and (iii) frivolous or vexatious.
10. After a part hearing of the defendants’ motion, the plaintiff issued a motion seeking to amend his statement of claim.
Two appeals to Court of Appeal
11. There were two appeals before the Court of Appeal. The plaintiff appealed to the Court of Appeal against an order of Charleton J. dated the 20th April, 2009 where it was ordered:-
(a) that the proceedings be struck out as an abuse of process because, being an action alleging professional negligence, it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it; and
(b) that the plaintiff pay the defendants’ costs of the motion when taxed and ascertained.
12. The defendants appealed to the Court of Appeal against an order of Clark J. dated the 23rd November, 2010, where she:-
(a) permitted the plaintiff to amend his pleadings in order to introduce a new claim for “loss and damage in the week of the 3rd to 10th February 1999”, the particulars of which loss were that “the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be”;
(b) declined the defendants’ application to strike out the proceedings in their entirety on the basis of s. 3(1) of the Statute of Limitations (Amendment) Act, 1991, and
(c) directed that the issue of the application of the Statute of Limitations be determined by the trial judge.
13. The plaintiff had claimed in the statement of claim 4(b) that:-
“They failed to instruct Counsel properly or adequately, and indeed retained Counsel only on the night before the Trial…”
Thus, the plaintiff complained that, despite knowing for approximately a week that counsel would be unavailable, no new counsel was engaged to defend him until the day before the trial was due to take place. The defendants, in their defence, denied that counsel was retained only on the night before the trial.
14. The plaintiff’s claim, pursuant to the order of the High Court (Clark J.), was therefore a claim for loss and damage in the week of the 3rd to the 10th February, 1999, arising from the fact that the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be.
15. In the Court of Appeal the defendants submitted that while Clark J. struck out the claims of the plaintiff as originally constituted as an abuse of process, she erred by allowing the plaintiff to amend his proceedings and by not simply striking out the entire proceedings.
16. The Court of Appeal held that the permitted claim was a claim in tort only, and that it could only therefore be a personal injury claim. The fact that contract was pleaded, as part of the claims which were originally made, was not relevant as all those claims had been struck out.
17. The Court of Appeal (Peart J.) concluded:-
“29. There is no doubt in my view that the claim permitted is statute-barred. I appreciate that no amended Statement of Claim has been delivered by the plaintiff, presumably because the order of Clark J. is under appeal, but it can be noted and had regard to that in its Defence to the Statement of Claim originally delivered, the defendants pleaded the statute. There have been cases where a defendant has attempted to have a plaintiff’s claim struck out ahead of the delivery of its defence, and that application has been considered to be premature, since a plea on the statute is a plea by way of defence. But here the position is clear. The plaintiff’s claim has been permitted by way of amendment where the cause of action accrued at latest on the 10th February 1999. That is not in dispute. It is now a new personal injury claim in tort. A two year, or at best from the plaintiff’s point of view a three year, limitation period applies. In my view, Clark J. ought not to have permitted an amendment of the claim in order to introduce a personal injury claim that was clearly statute-barred. She was already in possession of all the facts and circumstances said to give rise to that claim, as is clear from the very precise nature of the amendment permitted by her. On that ground alone I would allow this appeal and vacate that part of the order of Clark J. which permitted an amendment to the plaintiff’s claim.
30. There is, however, another important aspect to the appeal which should be addressed by reference to the judgment of Hogan J. in Walter and another v. Crossan and others [2014] IEHC 377. It is the entirely separate question whether, even if this claim was not statute-barred, damages for the alleged worry and stress during the week of 3rd February 1999 is recoverable at all, given the absence of any pleaded recognizable psychiatric injury. In Walter, Hogan J. examined the relevant case-law in this area both from this and the neighbouring jurisdiction with typical care and exhaustion, and concluded on the facts of that case that even though there was a duty of care owed to the plaintiff purchasers by the firm of solicitors acting for the builder of the house, the only damages claimed were for “mental distress, upset and inconvenience falling short of nervous shock or psychiatric injury” and as such were not recoverable. I appreciate that in Walter there was no contractual relationship between the plaintiffs and the solicitor firm and that the only remedy, if any, was in negligence predicated on a duty of care being owed. But in the present case, the claims based upon a breach of contract have been expressly struck out by Clark J., and cannot subtend the claim that was permitted by way of amendment. It is now solely a claim in negligence, and it seems to me in such circumstances that the damage being claimed are, as in Walter, in respect of a category of claim for which damages are not recoverable, namely mental distress, stress generally and worry, but short of any recognised psychiatric illness.
31. That being my conclusion, I am satisfied that having struck out all the plaintiff’s existing claims in the proceedings, Clark J. erred in permitting the plaintiff to amend his Statement of Claim by inserting the new claim for damages in negligence and breach of duty which are provided for in her order under appeal by the defendants.”
The Court of Appeal then allowed the appeal of the defendants against that part of the order of Clark J.
18. As to the plaintiff’s appeal against the order of the High Court (Charleton J.) of the 20th April, 2009, when the learned trial judge acceded to a motion by the defendants to strike out the plaintiff’s proceedings as an abuse of process on the ground that being an action alleging professional negligence, it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it, the Court of Appeal held, Peart J. stating:-
“In my view it is unnecessary now to dispose of that appeal, save to say that if I was required to reach a determination I would have allowed that appeal because, while there is certainly authority to the effect that in cases alleging medical negligence against a doctor or other professional person, it would be an abuse of process or irresponsible to launch such proceedings in the absence of the plaintiff’s solicitor satisfying himself or herself that there were reasonable grounds for the allegations of negligence being made, I would not exclude the possibility that where the action is being contemplated against a solicitor for professional negligence, the plaintiff’s solicitor may not in every case require to obtain an independent expert opinion from another solicitor or counsel in order to form the relevant opinion that the facts of the case disclose a prima facie case, and that it is not irresponsible to commence the proceedings.
34. Every case will depend on its own facts, and a plaintiff’s solicitor ought to exercise caution in every such case. In any case where he or she has a doubt, prudence suggests that an opinion from another expert be sought in advance of commencement. I believe that such a view is consistent with what was stated by Denham J. (as she then was) when, having considered the views expressed by Barr J. in Reidy v. National Maternity Hospital [1997] IEHC 143, and those of Kelly J. in Connolly v. Casey & Fitzgibbon [2000] 1 IR 345, she expressed agreement as follows:
‘While bearing in mind the important right of access to the Courts I am satisfied that these statements of law are correct. To issue proceedings alleging professional negligence puts an individual in a situation where for professional or practice reasons to have the case proceed in open Court may be perceived and feared by that professional as being unprofessional conduct’.”
19. The Court of Appeal stated that it was unnecessary to reach a concluded view on the appeal from Charleton J., given that the appeal against the order of Clark J. was allowed.
Submissions
20. The parties filed written submissions in this appeal. The Court also heard oral argument by counsel on behalf of each party.
Single appeal
21. As the Court of Appeal made no determination on the appeal from Charleton J., the issue before the Court arises from the decision of the Court of Appeal on the appeal from the decision of Clark J.
Determination
22. In its determination [2016] IESCDET 20, the Court was of the view that the plaintiff had raised an issue of general public importance, whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract in which the particulars of loss and damage claimed are worry and stress short of a recognised physical injury should be treated as a personal injury action subject to the statutory limitation period applicable to personal injury actions.
Issues
23. The plaintiff submitted that two questions arise on the determination of the Court, being:-
1. Whether the plaintiff’s claim, as amended by Clark J., constitutes a claim for personal injuries.
2. If the claim should not be treated as a personal injuries action, is the loss and/or damage claimed by the plaintiff for “worry and stress” recoverable in an action for breach of contract and/or professional negligence.
Personal Injury
24. If this claim were treated as a personal injury claim, it would be statute barred, as the plaintiff’s claim issued over three years after the event, being the statutory limitation period applicable.
25. If this claim were treated as a personal injury claim, the loss and damage claimed, being for worry and stress, does not amount to a recognised psychiatric injury, and thus, is not recoverable in a personal injury claim.
Tort
26. I would affirm the decision of the Court of Appeal (Peart J.) that the claim as amended by Clark J. in the High Court is solely a claim in negligence and so is statute barred. Further, as it is a claim for “worry and stress” without any psychiatric illness, no damages would, at any rate, be recoverable. Consequently, I would dismiss this aspect of the appeal of the plaintiff, on tort.
27. I agree with the decision of Hogan J. in Walter v Crossan [2014] IEHC 377, as he then was a judge of the High Court, where he held that damages for worry and stress not giving rise to psychiatric injury is not recoverable in tort.
28. I note also the decision in Larkin v Dublin City Council [2008] 1 IR 391. There the plaintiff suffered upset and emotional upheaval, but no psychiatric illness, because of a mistaken communication that he had been promoted. Clarke J. accepted that there had been a duty of care, which had been breached, but held that it did not give rise to any injury which entitled the plaintiff to recover damages.
29. Thus, I would dismiss this aspect of the plaintiff’s claim. I am satisfied that the claim as framed in the amendment made by Clark J., seeking damages for negligence, in which the particulars of loss and damage claimed are for worry and stress short of psychiatric illness, should be treated as a personal injury action, and so subject to the statutory limitation period applicable to personal injury actions. Consequently, I would affirm the finding of the Court of Appeal that the claim was statute barred. I would affirm also the decision of the Court of Appeal that damages would not lie for worry and stress in the absence of a psychiatric illness. Consequently, I would dismiss the aspect of the appeal relating to the tort of negligence for personal injuries.
Professional Negligence and Breach of Contract
30. The plaintiff moved the claim, against the solicitor defendants, as a claim for damages for professional negligence and breach of contract.
31. There is rather an unusual matrix of facts in this case. The issue of the claim in professional negligence has been struck out by Charleton J. in the High Court. Given the run of events in the Court of Appeal, the appeal against Charleton J. was not addressed. Thus, the decision of the High Court stands, striking out the claim for professional negligence.
32. However, an issue may be inferred from the determination, and an issue argued by the plaintiff was as to whether the loss and damage claimed by the plaintiff for “worry and stress” may be recoverable in an action for breach of contract and/or professional negligence.
33. In such a situation a question would arise as to whether he would be entitled to recover for loss and damage as sought, short of a psychiatric illness.
Addis v Gramaphone Co. Ltd [1909] AC 488
34. It was established in Addis v Gramaphone Co. Ltd [1909] AC 488, that Courts would not in general permit damages for worry or upset as a consequence of a breach of contract. In Addis a servant was wrongfully dismissed from his employment. The issue of damages arose. In the House of Lords Lord Loreburn L.C. stated:-
“To my mind it signifies nothing in the present case whether the claim is to be treated as for wrongful dismissal or not. In any case there was a breach of contract in not allowing the plaintiff to discharge his duties as manager, and the damages are exactly the same in either view. They are, in my opinion, the salary to which the plaintiff was entitled for the six months between October, 1905, and April, 1906, together with the commission which the jury think he would have earned had he been allowed to manage the business himself. I cannot agree that the manner of dismissal affects these damages. Such considerations have never been allowed to influence damages in this kind of case.
…
If there be a dismissal without notice the employer must pay an indemnity; but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment.”
Lord Atkinson stated:-
“I have always understood that damages for breach of contract were in the nature of compensation, not punishment,
…
In Sikes v Wild (1861) 1 B. & S. 587, at p. 594, Lord Blackburn says:
“I do not see how the existence of misconduct can alter the rule of law by which damages for breach of contract are to be assessed. It may render the contract voidable on the ground of fraud or give a cause of action for deceit, but surely it cannot alter the effect of the contract itself.”
There are three well-known exceptions to the general rule applicable to the measure of damages for breach of contract, namely, actions against a banker for refusing to pay a customer’s cheque when he has in his hands funds of the customer’s to meet it, actions for breach of promise of marriage, and actions like that in Flureau v Thornhill (1776) 2 W. BI. 1078, where the vendor of real estate, without any fault on his part, fails to make title. I know of none other.
…
In many other cases of breach of contract there may be circumstances of malice, fraud, defamation, or violence, which would sustain an action of tort as an alternative remedy to an action for breach of contract. If one should select the former mode of redress, he may, no doubt, recover exemplary damages, or what is sometimes styled vindictive damages; but if he should choose to seek redress in the form of an action for breach of contract, he lets in all the consequences of that form of action; Thorpe v Thorpe, (1832) 3 B. & Ad. 580. One of these consequences is, I think, this: that he is to be paid adequate compensation in money for the loss of that which he would have received had his contract been kept, and no more.”
[Emphasis added]
33. This has remained for many years the foundation case setting out the law on such damages in a contract action, with the few exceptions to the general principles as identified by Lord Atkinson.
34. There have been some additional exceptions added in specific cases.
35. In McDermott, Contract Law (Butterworths, 2001) paras 22.57 and 22.58 the theory behind the exclusionary rule was provided:-
“Many factors explain the courts restrictive approach to non-pecuniary losses. The Addis decision reflects the individualist orientation of traditional contract law under which contracts are impersonal relationships, concerned primarily with economic exchange, and do not typically involve other elements of the parties personalities. It also reflects an historical desire not to restrict unduly the ability of employers to dismiss employees and a mistrust of exemplary damages (which appeared to be what the plaintiff was seeking in Addis). In Baltic Shipping v Dixon [1993] 176 CLR 344, Mason C.J. observed that:-
‘The conceptual policy foundations of the general rule are by no means clear. It seems to rest on the view that damages for breach of contract are in essence compensatory and that they are confined to the award of that sum of money which will put the injured party in the financial position the party would have been had the breach of contract not taken place.’”
Mason C.J. held that the policy is based on an apprehension that the recovery of compensation for injured feelings will lead to inflated awards of damages in contract cases. Other reasons put forward include:-
(i) It is too harsh on the defendant to have to pay damages for mental distress.
(ii) Mental distress is incapable of exact proof.
(iii) The risk of mental distress is voluntarily assumed by the plaintiff upon entering into the contract.”
36. The law was further described in Watts v Morrow [1991] 1 WLR 1421 by Bingham LJ:-
“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy. But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind, or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead.”
[Emphasis added]
37. I agree with that statement of Bingham LJ.
38. The key is that one looks to the very object of a contract. Also, I agree with Lord Neuberger in Hamilton Jones v David & Snape [2004] 1 WLR 924. In Hamilton Neuberger J. held that the facts of the case took the solicitor-client relationship into a special categorisation, as the solicitor had been retained in particular to address the anxiety of the wife that her husband would abduct their children. This did happen, her solicitors having taken insufficient measures to prevent such abduction. Lord Neuberger stated:-
“52. Where a claim is founded in contract, the general rule is that the contract breaker cannot be liable for damages for injured feelings or distress: see Addis v Gramaphone Co Ltd [1909] AC 488, which still remains the law, although it is subject to exceptions (as mentioned by Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1, 37 – 38; I would also refer to the discussion in the speech of Lord Cooke of Thorndon in the same case at p 49f – 50h). The question, therefore must be whether a case such as the present falls into one of the established exceptions to the rule in Addis v Gramaphone Co Ltd or whether, indeed, it should represent a new exception to the rule.”
The Court was satisfied in that case that a significant aspect of the instructions was that the wife would retain custody of her children for her own pleasure and peace of mind.
39. Other types of contracts where an exception to the rule in Addis arises include a contract in relation to a holiday, where such a contract is to provide for pleasure and relaxation.
40. Also, it has arisen where there was a failure to secure an injunction to prevent a plaintiff being molested Heywood v Wellers [1976] 2 WLR 101
41. In addition, it has arisen where there was a wrongful adjudication as a bankrupt: Hussey v Dillon [1995] 1 IR 111.
42. The plaintiff relied on McLeish v Amoo-Gottfried & Co. (1993) The Times, 13th October, 1993, (1993) 10 PN 102. This was a solicitor’s negligence action in which liability was admitted and it came before the Queen’s Bench Division for assessment of damage. In McLeish Scott Baker J. stated:-
“Mr. Goodman for the plaintiff contends that, subject to the normal rules of remoteness and mitigation, damages for distress may form part of an award in cases of professional negligence, irrespective of whether the plaintiff chooses to frame his case in contract or tort. Whilst mental distress is not in itself sufficient damages to ground an action in tort, Mr. Doggett for the Defendants accepts that the plaintiff is entitled to damages in contract under this head and refers me to the judgment of Lord Justice Bingham in Watts v. Morrow [1991] 4 All ER 937, 54 Build LR 86 at 959, of the former report where he says…”
Here Scott Baker J. quotes from Bingham L.J., as set out above.
42. I would distinguish McLeish. In that case liability was admitted, it has not been in this case. Further, indeed it was pointed out by Scott Baker J. that, mental distress is not in itself sufficient damages to ground an action in tort, such as claimed in this case. Scott Baker J. relied on Watts v. Morrow where Bingham L.J. stated that a contract breaker is not in general liable for distress etc., but he indicated exceptions based on the object of the contract. The circumstances in McLeish are entirely different to that of the plaintiff. Consequently, I find no persuasive value in McLeish
43. The issue of such damages in contract cases has arisen as an ancillary ground in cases in Ireland. In Kelly v Crowley [ 1985] 1 IR 212, Murphy J. held that a solicitor was professionally negligent. However, a claim for mental distress was not permitted as an additional claim for damages.
44. In Doran v Delaney (No. 2) 1999 1 IR 303, Geoghegan J. did award damages for a high degree of anxiety suffered by the plaintiff arising from the defendants’ negligence. He held that the plaintiffs suffered a high degree of anxiety and that their health had been undermined because of the negligence of their solicitor’s advice in purchasing a site in order to construct a dwelling house. The court held that the plaintiffs would never have engaged in the transaction, which resulted in a lengthy dispute and forced them to resell the property at a loss and left them in considerable debt, if they had been adequately informed by the defendants. However, in Doran v. Delaney (No 2.) the plaintiffs’ action was not only against their own solicitor, but also against the vendor and against the vendor’s solicitors, and they were successful against all the defendants. The award of €10,000 general damages was against all of the defendants.
45. In analysing whether a contract may be an exception to the rule in Addis it is useful to consider the analysis by Brennan J. in Baltic Shipping Co. v Dillon (1993) 111 ALR 289, where he stated:-
“To ascertain whether the obtaining of peace of mind is the object of a contract or, more accurately, an object of a contract, reference is made to its terms, express or implied, construed in the context of facts which the parties know or are taken to have known. Thus, if peaceful and comfortable accommodation is promised to holidaymakers and the accommodation tendered does not answer the description, there is a breach which directly causes the loss of the promised peacefulness and comfort and damages are recoverable accordingly. In cases of this kind, a statement of the promisor commending a service or facility to be provided under the contract is frequently a term of the contract, not a mere representation.”
46. The law in Northern Ireland is similar to that in Australia. Smyth v Huey & Co [1993] NI 236, was a case of solicitor’s negligence in relation to a conveyance. The Court held that the plaintiffs were not entitled to damages for distress. The test as to exceptions to the Addis rule was stated as:-
“a plaintiff is not entitled to general damages for ‘distress and inconvenience’ unless he can bring himself within one of the two exceptions to the general rule: namely (1) mental distress caused by physical discomfort or inconvenience resulting from breach of duty in contract or in tort. (2) A contract whose very object is to provide pleasure, relaxation, peace of mind or freedom from molestation.”
Conclusion
47. In this appeal the plaintiff asked the Court to create new law, that Addis should not be followed. Or, if the Court would not take that step, that the Court would hold that the plaintiff’s claim came within one of the recognised exceptions to Addis. Or, it was suggested, the Court could find a new exception to Addis.
48. In this case the plaintiff had been represented by solicitor and counsel and there was no breach of professional standards as he was competently represented. The plaintiff was, in effect, trying to establish a separate cause of action and seeking damages for worry and stress. This case is further complicated by the fact that there was not a direct contract with the solicitor, the plaintiff had the benefit of the statutory legal aid scheme with a solicitor assigned by the Court. However, the fundamental situation is that the plaintiff had competent legal advisors. The only injury alleged is worry and stress arising because he did not know who his counsel would be the day before his trial.
49. Addis v. Gramaphone Co. Ltd [1909] AC 488, remains the law in Ireland.
50. I am satisfied that the plaintiff’s claim does not come within one of the recognised exceptions to Addis. If one presumed there was a contract, it was for professional services, and there was no breach as he was competently legally represented. This case does not establish a stand alone claim. There is no stand alone right of claim for being upset. Insofar as it is a personal injury, it is statute barred.
51. The nature of the contract was not such that damages for distress would be available.
52. There is no reason, in all the circumstances of the case, to consider any additional exceptions to the law as set out in Addis and subsequent judgments.
53. The appeal before this Court is confined to the determination made on the application for leave. There are many issues in the proceedings which are not before this Court. On the issue before the Court, I would dismiss the appeal.
H556
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Noone -v- Residentail Tenancies Board [2017] IEHC 556 (06 October 2017)
URL: http://www.bailii.org/ie/cases/IEHC/2017/H556.html
Cite as: [2017] IEHC 556, [2019] 1 IR 205
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Judgment
Title:
Noone -v- Residentail Tenancies Board
Neutral Citation:
[2017] IEHC 556
High Court Record Number:
2016 310 MCA
Date of Delivery:
06/10/2017
Court:
High Court
Judgment by:
Noonan J.
Status:
Approved
[2017] IEHC 556
THE HIGH COURT
[2016 No. 310 MCA.]
BETWEEN
SUSAN NOONE
align=”right”>
APPELLANT
AND
RESIDENTIAL TENANCIES BOARD
RESPONDENT
AND
RICHARD ROE
NOTICE PARTY
JUDGMENT of Mr. Justice Noonan delivered on the 6th day of October, 2017
1. Does the High Court have jurisdiction to enlarge the time for bringing an appeal to this court from a determination order made by the respondent (the RTB)? That is the essential preliminary issue that arises on this appeal which if resolved against the appellant disposes of the matter.
Background Facts
2. The appellant is the tenant of a rented dwelling at 35 Mount Drinan Avenue, Swords, County Dublin of which the notice party is landlord. A notice of termination was served by the notice party on the appellant on the 19th January, 2016, alleging a breach by the appellant of the terms of the tenancy. The appellant did not vacate the premises on the expiry of the notice and the notice party accordingly applied to the RTB for dispute resolution services. The RTB referred the dispute to adjudication and a hearing took place before an adjudicator on 17th May, 2016. The adjudicator issued a determination which was appealed to the Tenancy Tribunal before which a hearing took place on the 28th July, 2016.
3. The Tenancy Tribunal made a determination order on the 23rd August, 2016, which was issued on 26th August, 2016. This determined that the notice of termination was valid and directed the appellant to vacate the premises within 91 days of the date of issue of the order. The order further directed payment of arrears of rent.
4. On 23rd September, 2016, the appellant issued the within notice of motion seeking to appeal on a point of law to this court from the determination order of the Tenancy Tribunal.
Relevant Legislative Provisions
5. Section 123 of the Residential Tenancies Act, 2004, insofar as relevant to these proceedings, provides as follows:-
“(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).
(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.
(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive…
(8) In this section ‘relevant period’ means the period of 21 days beginning on the date that the determination order concerned is issued to the parties.”
6. As the brief chronology above shows, this appeal was brought more than 21 days from the date that the determination order issued.
7. Order 84C of the Rules of the Superior Courts, insofar as it is relevant to this appeal, provides as follows:
“1. (2) Where any enactment provides for an appeal to be made to the High Court or to a judge of the High Court from a decision or determination made or direction given by a person or body, other than a court, which person or body is authorised by any enactment to make such decision or determination or give such direction (in this Order referred to as ‘the deciding body’), and provision for the procedure applicable is not made either by the enactment concerned or by another Order of these Rules, the procedure set out in the following rules of this Order shall apply, subject to any requirement of the relevant enactment.…
2.(5) Subject to any provision to the contrary in the relevant enactment, the notice of motion shall be issued –
(a) not later than twenty-one days following the giving by the deciding body to the intending appellant of notice of the deciding body’s decision, or
(b) within such further period as the Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter.”
The Arguments
8. The first relief sought in the appellant’s notice of motion is an extension of time pursuant to O. 84C r. 2(5)(b). The appellant proceeded on the basis that O. 84C applied having regard to the fact that this court (Baker J.) expressly applied it in Keon v. Gibbs [2015] IEHC 812. Accordingly the appellant submitted that this court was bound to apply O. 84C on the same basis.
9. The RTB on the other hand submitted that the 21 day time limit in s. 123 was an absolute one which was clear in its terms and accordingly O. 84C has no application insofar as extension of time is concerned. A number of authorities were cited in that regard by counsel for the RTB. She submitted that insofar as Keon appeared to decide that the extension of time provision in O. 84C was applicable to appeals under s. 123, Keon was wrongly decided. Furthermore, counsel submitted that Keon proceeded on the basis that both the parties and the court assumed that O. 84C applied and no argument was ever addressed to the court to the contrary.
10. In that latter regard, counsel for the appellant made the point that the RTB was a respondent in the Keon case and ought not now be permitted to argue for a position contrary to that adopted by it in Keon to persuade this court that it ought not be followed. However, during the course of the hearing, I was informed by counsel for the RTB that although it was named as a respondent in Keon, it had not been served with the motion seeking an extension of time and therefore did not participate in the hearing. Indeed, at para. 2 of her judgment, Baker J. noted that the Board took no part in the application.
11. Having regard to the arguments that were raised by the RTB on the hearing of this application, I invited the parties to make further submissions in relation to the circumstances in which a court would be entitled to depart from a recent decision of a court of equal jurisdiction in the context of what might be described as the line of authorities commencing with Re Worldport Ireland Ltd [2005] IEHC 189. The parties duly furnished me with further submissions on this issue and I reserved judgment.
12. Before that judgment was delivered however, the Court of Appeal delivered judgment in an appeal from the decision of Baker J. in Keon which appeared to me to be of potential significance in the context of the issue arising in this case. Accordingly I issued a further invitation to the parties to make any additional written submissions they wished to in the light of this development, an invitation which was accepted by both parties by way of the submission of further written argument.
Discussion
13. In our adversarial system, litigation is party led. The court is normally asked to reach a decision based on competing arguments advanced by the opposing parties. Where those parties are legally represented at any rate, the court will normally proceed on the assumption that in opting between opposing arguments, the parties have themselves fully researched and considered the applicable legal principles. In the normal course of events, the court will not consider issues that have not been raised by the parties nor as a general rule will it have the resources to do so.
14. On occasion of course, the court may of its own motion raise an issue of concern which needs to be addressed and invite further argument on that issue, as indeed occurred here. Slightly different considerations can apply in the case of litigants in person where their ability to assist the court in reaching the correct conclusion is naturally more limited than that of professional lawyers.
15. In Keon, it is evident from a reading of the judgment of Baker J. that from the outset, both parties proceeded on the assumption that the court enjoyed jurisdiction under O. 84C to extend the time to bring an appeal from a decision of the Board. The controversy in that case was concerned only with whether or not the appellant had brought himself within the terms of the order. This is clear from the first paragraph of the judgment:
“[1.] This judgment concerns the approach of the court to an application to extend time to appeal a decision of the Private Residential Tenancies Board (hereinafter “the Board”) under the provisions of Order 84C of the Rules of the Superior Courts.”
16. Neither party addressed in any way the terms of s. 123(3). Indeed the section is not even mentioned in the judgment save in a quotation from a “standard note” from the tribunal referenced by the court at para. 15.
17. It is clear therefore that the issue with which I am concerned is one which was neither raised by the parties nor considered by the court in Keon. The court was not invited to carry out any analysis of s. 123(3) nor did it do so. In such circumstances, I do not think that the judgment of Baker J. can be regarded as authority for the proposition that s. 123(3) does not contain an absolute time limit. True it is that the underlying premise of the judgment is that it does but I do not think that can be determinative of the issue I have to decide.
18. Indeed, it is evident from the judgment of the Court of Appeal delivered by Hogan J. (at [2017] IECA 195), that the Court of Appeal was very much alive to this difficulty.
19. In the High Court, Baker J. refused the application to extend time on the merits so that ultimately, the question of jurisdiction became somewhat moot or academic. The issue clearly did arise in argument before the Court of Appeal which appears to have adopted a pragmatic approach as explained by Hogan J.:
“[20.] As I have already indicated, the appellant has sought to appeal this decision on its merits. But before considering this question, it is, however, necessary to examine at least in passing a jurisdictional issue which was not directly addressed in the High Court. This was in large part because as counsel for the receiver, Mr. Mooney, informed us, his client wanted that Court to consider simply the merits of the application to extend time rather than address a jurisdictional question which – depending on the way it was resolved – might, in turn, raise a separate constitutional issue.
[21.] It was on this basis, therefore, that the Court determined at the outset of the appeal in an ex tempore ruling delivered by Finlay Geoghegan J. to proceed with the merits of the appeal to extend time and that it would only finally determine the jurisdictional issue in the event that it proved necessary to do so. In view of the clear conclusions which I have reached (and which I will detail presently) that the appellant has not presented any arguable grounds of appeal so that it would, in any event, be inappropriate to extend time, it is unnecessary to reach any concluded view on this jurisdictional issue. I feel nonetheless that it is important to draw attention to this jurisdictional issue as it may assume an importance in any subsequent case.”
20. Hogan J. went on to express some very helpful views on the jurisdictional issue under s. 123. While these observations were clearly made obiter, I have found them to be of great assistance and I respectfully adopt and agree with them. Thus, Hogan J. continued:
“[24.] Perhaps the first thing to note is that there is nothing in s. 123 of the 2004 Act which indicates that this statutory time limit might be extended under any circumstances. It is true that in Law Society of Ireland v. Tobin [2016] IECA 26 this Court held that it enjoys an inherent jurisdiction to extend time where the relevant statutory provision permitting an appeal did not expressly provide for such a power. This, however, was in the context of an appeal from the High Court to this Court, where the right of appeal is constitutionally guaranteed by Article 34.4.1 unless regulated or excepted by law.…
[25.] The present case is quite different, since – unlike the position in Tobin – the right of appeal to the High Court from the Tribunal is entirely dependent on statutory vesture. If, however, the Oireachtas has not provided for a power to extend time in this particular context, an issue must arise as to whether there is such a power at all under any circumstances, no matter what good reason for the delay may be advanced by any putative appellant.
[26.] The second thing to note is that the High Court proceeded on the basis that Ord. 84C independently conferred a power to extend time. I am not, with respect, convinced, however, that this premise is altogether correct. It is true that Ord. 84C, r. 2(5)(b) does provide for a power to extend time, but this is expressed to be contingent on ‘any provision to the contrary in any relevant enactment.’ If the proper construction of s. 123(3) of the 2004 Act is that it provides for a strict 21 day time limit which is not capable of extension, then this would amount to a ‘provision to the contrary’ such as would negative the potential operation of Ord. 84C, r. 2(5)(b). Certainly, if this is the proper construction of s. 123(3), then the scope of that appellate jurisdiction could not be changed or enlarged by Rules of Court: see, e.g. , The State (O’Flaherty) v. O Floinn [1954] I.R. 295 ; Rainey v. Delap [1988] I.R. 470. A further consideration is that in view of the provisions of Article 15.2.1 of the Constitution (which vests exclusive legislative power in the Oireachtas) then, as I observed in Gokul v. Aer Lingus plc [2013] IEHC 432:
‘any such change could only be brought by primary legislation enacted by the Oireachtas and could not be done not simply by Rule of Court….’ ”
21. The wording of s. 123(3) and (8) is clear on its face and an appeal must be brought within 21 days of the date that the determination order is issued. By any reckoning, the appellant was outside the 21 day period in bringing this appeal. There does not appear to me to be any ambiguity in the wording of the section which might be said to leave open the possibility of the court having a discretion to extend the time. Had the Oireachtas intended that such a discretion be available to the court, it could have expressly so provided. It is worth noting in that regard that s. 88 of the 2004 Act gives express power to the RTB to extend the time limited by the Act for referral of a dispute to it for resolution. Thus s. 88 provides:
“(1) The Board may, on application to it, extend the time limited by any provision of this or any other Part for the referral of a dispute to it for resolution.
(2) The Board shall not extend the time concerned unless the applicant for the extension shows good grounds for why the time should be extended…”
22. Had the Oireachtas wished to provide for a similar power to extend on the part of the court in the case of an appeal to the High Court, it would presumably have done so in similar terms. The fact that the Oireachtas did not do so must be viewed as not only deliberate but as amounting to a provision “to the contrary” within the meaning of O. 84C r. 2(5)(b) as suggested by Hogan J.
23. In the context of planning legislation, the authorities suggest that time limits must be adhered to in the absence of express provision to the contrary and the court has no power to interfere – see State (Elm Developments Limited) v. An Bord Pleanála [1981] ILRM 108 (at p. 111), Brown v. Kerry County Council [2011] 3 IR 514 and McCann v. An Bord Pleanála [1997] 1 I.R. 264.
24. In Curran v. Solicitors Disciplinary Tribunal [2017] IEHC 2, the court was required to consider s. 7(12) (b) of the Solicitors (Amendment) Act 1960 which provides for the bringing of an appeal to the High Court from a decision of the Solicitors Disciplinary Tribunal “within 21 days of the receipt by the appellant of notification in writing of the finding”. Eagar J. held that the language of this section, similar in its terms to s. 123 of the 2004 Act, was mandatory in nature and did not permit of an extension of time. In finding that the wording of the provision was clear, Eagar J. noted (at para. 22):
“When the legislature chose to extend the availability of an appeal against the decision of no finding of prima facie case, it expressly chose to limit this wider right of appeal to a strict time frame, without discretion to extend time.”
25. Even if there was any potential conflict between the terms of s. 123 and O. 84C, which I do not believe there is, for the reasons explained by Hogan J. the clear intent of the legislature, evident from the wording of s. 123, cannot be overborne by secondary legislation such as the Rules of the Superior Courts.
26. Although as I have explained, the issue under discussion was not considered by Baker J. in Keon and thus it might be said that the decision does not conflict with the conclusion I have reached, insofar as it does, it seems to me that the Worldport principles are engaged. In that case, Clarke J. noted (at p. 7):
“Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period.”
27. Those views were reiterated by the same judge, this time speaking in the Supreme Court, in Kadri v. The Governor of Wheatfield Prison [2012] IESC 27 where he said (at p. 2):
“[2.1] The jurisprudence of the High Court regarding the proper approach of a judge of that Court when faced with a previous decision of another judge of that Court is consistent. The authorities go back to the decision of Parke J. in Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50. Similar views have been expressed in my own judgment in In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189, by Kearns P. in Brady v. D.P.P. [2010] IEHC 231, and most recently by Cross J. in B.N.J.L. v. Minister for Justice, Equality & Law Reform [2012] IEHC 74 where Worldport was expressly followed.
[2.2] It seems to me that that jurisprudence correctly states the proper approach of a High Court judge in such circumstances. A court should not lightly depart from a previous decision of the same court unless there are strong reasons, in accordance with that jurisprudence, for so doing.”
28. Having regard to the fact that the issue now before the court was not the subject matter of any consideration by Baker J. in Keon, in my view it may be said that the first and/or second of the Worldport principles arise. The fact that the court was not invited to, and did not in fact, consider this issue in arriving at its conclusion seems to me to provide a strong reason why I should not follow the implicit underlying rationale that the court possesses jurisdiction to extend the 21 day period limited by s. 123 of the 2004 Act.
Conclusion
29. For these reasons therefore, I am satisfied that the time limit stipulated in s. 123 of the 2004 Act is an absolute one and the court does not enjoy any jurisdiction to extend it . Thus, as this appeal was not brought within the time limited in that behalf by s. 123 it must accordingly fail in limine. In that event, it is unnecessary to consider any of the other issues raised by the appellant. Accordingly, I will dismiss this appeal.
H321
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nestor -v- Residential Tenancies Board formerly Private Residential Tenancies Board [2018] IEHC 321 (08 May 2018)
URL: http://www.bailii.org/ie/cases/IEHC/2018/H321.html
Cite as: [2018] IEHC 321
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Judgment
Title:
Nestor -v- Residential Tenancies Board formerly Private Residential Tenancies Board
Neutral Citation:
[2018] IEHC 321
High Court Record Number:
2016 332 MCA
Date of Delivery:
08/05/2018
Court:
High Court
Judgment by:
Twomey J.
Status:
Approved
[2018] IEHC 321
THE HIGH COURT
[2016 No. 332 MCA]
BETWEEN:
JERRARD NESTOR
align=”right”>APPELLANT
-AND-
RESIDENTIAL TENANCIES BOARD FORMERLY PRIVATE RESIDENTIAL TENANCIES BOARD
RESPONDENT
JUDGMENT of Mr. Justice Twomey delivered on the 8th day of May, 2018.
Summary – thousands of euro in legal costs to appeal an award of €910
1. The Appellant, (“Mr. Nestor”) has appealed the Determination Order dated 27th September, 2016 (the “Determination Order”) of the Respondent (the “RTB”), which decision determined that Mr. Nestor had unlawfully terminated a tenancy agreement for a premises in Galway. The Determination Order was issued after Mr. Nestor had appealed the earlier decision of the Adjudicator appointed by the RTB and made on the 15th June, 2016 which also found against Mr. Nestor.
2. The Determination Order concerned a premises at 134 College Road, Galway. The RTB determined, inter alia, that the Notice Party (“Mr. Tabuka”) was a tenant of Mr. Nestor’s at this premises and that his tenancy was unlawfully terminated by Mr. Nestor. The RTB ordered that Mr. Nestor pay back the deposit of €400 to Mr. Tabuka less €90 in respect of unpaid rent (€310 net) plus €600 as damages for the unlawful termination of the tenancy agreement and wrongful withholding of the deposit. Accordingly, a total of €910 was ordered by the RTB to be paid by Mr. Nestor to Mr. Tabuka. It is this award which is now being appealed to the High Court, notwithstanding the significant legal costs attached to High Court litigation.
3. Mr. Nestor is a lay litigant and he is appealing the Determination Order. Since Mr. Nestor has already appealed the decision of the Adjudicator to the RTB, the only appeal left to him is on a point of law to the High Court under s. 123(3) of the Residential Tenancies Act, 2004, which appeal is now before this Court.
4. It is important to note that this is not an appeal on the merits of the RTB’s decision. The first appeal from the Adjudicator to the RTB is an appeal on the merits and that appeal considered in general terms whether the Adjudicator made the right decision and that appeal is a de novo hearing of the dispute. In contrast, this appeal is an appeal on a point of law. This means that the RTB is entitled to get the decision wrong on the merits or more accurately, an appeal on a point of law means that this Court cannot reverse the decision of the RTB simply because this Court might have reached a different decision on the fact. This is because an appeal on a point of law is a much more limited appeal than an appeal on the merits. In this appeal on a point of law, this Court is concerned only with the much narrower issue of whether an error of law was made by the RTB or whether there was no evidence for the decision reached by the RTB, as distinct from whether the right decision was reached.
5. This judgment deals first with whether the decision of the RTB should be overturned on a point of law. Secondly, and irrespective of whether the appeal is successful or not, it deals with the broader and arguably more significant issue that this appeal of an award of €910, which is subject to the jurisdiction of the High Court, leads to the completely illogical situation where it costs many thousands of euro in legal costs to appeal a matter worth €910.
6. There were two substantive grounds of appeal raised by Mr. Nestor, which will now be considered in turn.
A. RTB has no jurisdiction as premises are landlord’s dwelling?
7. First, Mr. Nestor claims that the premises in question which Mr. Tabuka occupied is Mr. Nestor’s dwelling, as distinct from a self-contained unit, and so the RTB did not have the jurisdiction to deal with the dispute between Mr. Tabuka and Mr. Nestor under s. 3(2)(g) and s. 4(2) of the 2004 Act.
8. This would appear to be a valid argument on the facts as presented by Mr. Nestor of the layout of the dwelling and indeed it is possible that if Mr. Nestor had raised this argument at the hearing before the Adjudicator or at the appeal before the RTB, which appeal is a de novo hearing, Mr. Nestor might have been successful on this point.
9. However, one does not have numerous bites of the cherry if one is unhappy with a decision made by an administrative body, such as the Adjudicator under the 2004 Act or the RTB on an appeal of that decision. The only basis upon which one can appeal a decision of the RTB is on a point of law. The argument being put forward by Mr. Nestor is not a point of law argument, since it is a new ground of challenge to the jurisdiction of the Adjudicator and the RTB which was not raised previously.
10. As is clear from the judgment of Baker J., in Doyle v. Private Residential Tenancies Board [2015] IEHC 724, even if this Court agreed with Mr. Nestor, and he may well have a perfectly valid point, this Court is not permitted to decide this appeal on this ground proposed by Mr. Nestor, since it is new evidence that was not before the RTB.
11. While Mr. Nestor may feel personally aggrieved that this ground, which might have been successful, is not considered by this Court, there are perfectly good policy reasons for this approach, namely that there would be a considerable growth in the number of appeals to the High Court (at a considerable cost to the taxpayer), if this was permitted. The Oireachtas by enacting the 2004 Act has put in place a specialist and relatively cost-efficient body compared to the courts, namely the Adjudicator and RTB, to hear all the evidence and deal with all the grounds of the parties, so that court intervention should only be required in rare instances where they had been an error made on a point of law and not, as Mr. Nestor might like, to hear new grounds not advanced before the Adjudicator or the RTB.
12. As previously noted, the grounds for successfully appealing a decision on a point of law are very restricted and since the failure of the RTB to consider a ground which was not raised by Mr. Nestor, is not a challenge on a point of law, this Court rejects this ground of challenge by Mr. Nestor. It is to be noted that it is completely understandable that the grounds for an appeal should be so restricted, since Mr. Nestor has already had one appeal of the initial decision of the Adjudicator and one cannot have endless appeals on the merits of a decision.
B. No binding tenancy agreement with tenant?
13. The second ground of challenge by Mr. Nestor is that he did not have a tenancy agreement with Mr. Tabuka despite the RTB’s finding to that effect. His argument is that he had simply a proposed tenancy agreement with Mr. Tabuka, which was subject to a pre-condition that was never satisfied by Mr. Tabuka, namely that Mr. Tabuka, although he paid a deposit (€400), he failed to pay four weeks’ rent in advance to Mr. Nestor (€360). On this basis, Mr. Nestor argues that the RTB did not have jurisdiction to deal with this dispute, since there was no tenancy agreement in existence.
14. This ground is different from the first ground since it is not a new ground of challenge, as the same argument was made by Mr. Nestor before the RTB. As is clear from Doyle v. Private Residential Tenancies Board, it is of no assistance to Mr. Nestor if this Court agrees with his argument that he only had a proposed tenancy agreement with Mr. Tabuka. This is because under s. 123(3) of the 2004 Act, it is an appeal on a point of law, not an appeal on the merits. If this was an appeal on the merits, it is quite possible that this Court might have reached such a conclusion on the evidence.
15. However, as is clear from Doyle v. Private Residential Tenancies Board, the role of this Court is not to decide the case on its merits, but rather to decide whether there was any evidence before the RTB upon which it could have reached the conclusion that there was a tenancy agreement between Mr. Nestor and Mr. Tabuka.
16. As this Court cannot decide this appeal on the merits, it is also not the function of this Court to prefer the evidence of Mr. Nestor over that of Mr. Tabuka, or vice versa and this is why this Court did not accede to Mr. Nestor’s application to have this hearing adjourned when Mr. Nestor discovered that Mr. Tabuka would not be providing evidence to this Court. There is no need for Mr. Tabuka, or any other person, to provide evidence on an appeal on a point of law.
17. This Court must therefore simply consider whether there was any material which would constitute evidence upon which the RTB could rely for its conclusion that there was a tenancy agreement between Mr. Tabuka and Mr. Nestor.
18. In this regard, it is relevant to note that the following five pieces of evidence were relied upon by the RTB for its decision, and none of this evidence was disputed by Mr. Nestor:
(i) Mr. Tabuka and Mr. Nestor signed a tenancy agreement which provided for a term of 6 months, the payment of a deposit of €400 and the payment of rent of €90 per week, which rent was never paid by Mr Tabuka,
(ii) Mr. Tabuka paid Mr. Nestor a deposit of €400 in respect of the premises,
(iii) Mr. Nestor provided Mr. Tabuka with a key to the property and allowed him access to the property,
(iv) While it is disputed that Mr. Tabuka ever slept in the property, it is accepted that he occupied the property at a certain stage and was asked to vacate it by Mr. Nestor after less than a week of occupancy,
(v) Mr. Nestor sought to deduct €90 from the deposit to take account of the fact that he had lost one week of rent that he could have had from another party if Mr. Tabuka had not occupied the property for a week.
19. As previously noted, Mr. Nestor claims that the he never had a tenancy agreement with Mr. Tabuka and the evidence he relies upon for this conclusion is that it was a pre-condition of the alleged tenancy agreement that Mr. Tabuka pay four weeks’ rent in advance, which Mr. Tabuka never did.
20. Again, this is a plausible argument by Mr. Nestor and if this Court were hearing this appeal on the merits, it is possible that it would have concluded that no tenancy agreement came into existence. However, it is relevant to note that the signed tenancy agreement was not produced in evidence before this Court, nor was it before the RTB, although Mr. Nestor alleges that he provided it to the Adjudicator.
21. In any case, as is clear from Doyle v. Private Residential Tenancies Board, the sole role of this Court on a point of law appeal is to determine whether this Court can conclude that there was no evidence before the RTB which supported its finding that there was a tenancy agreement between Mr. Nestor and Mr. Tabuka.
22. It seems clear to this Court that, whether this Court agrees with the RTB or not with its finding, it is the case that the foregoing evidence constitutes evidence which supports the RTB’s conclusion that there was a tenancy agreement in place between Mr. Nestor and Mr. Tabuka. This Court has particular regard to:
• the fact that an agreement was signed providing for a six month tenancy,
• the fact that Mr. Tabuka paid Mr. Nestor a deposit,
• the fact that Mr. Nestor handed over the keys tot the premises to Mr. Tabuka,
• the fact of Mr. Tabuka’s occupancy of the property for up to a week.
23. Therefore, this Court cannot say that there was no evidence for this conclusion. Accordingly, this ground of challenge is also rejected by this Court. For this reason, Mr. Nestor is unsuccessful in this appeal.
Illogical to risk thousands of euro to appeal an award of €910
24. However, while deciding this substantive point of appeal before this court, it became clear that the most significant issue arising out of this appeal is that under the appeal system in place for decisions of the RTB, it is likely to cost an appellant such as Mr. Nestor several thousand euro in legal costs to appeal a case with a value of €910, which to this Court defies all logic.
25. This is because the appeal of the RTB decision under s. 123(3) of the 2004 Act is not to the District Court or the Circuit Court, but to the High Court. The hearing of the appeal in this case took circa two hours (i.e. a half-day hearing in the High Court). This means that the costs of appealing the award of damages of €910 by the RTB are likely to be many thousands of euro, since High Court litigation is so expensive. In this Court’s view this is the most significant issue arising out of this appeal.
26. This is because whether Mr. Nestor is successful or not in his appeal, it must be observed that there is something illogical with a system where it costs several thousand euro to appeal an award of €910. It means that while a landlord or tenant has an appeal in principle from a decision of the RTB, in practice very few people would risk having thousands of euro awarded against them in legal costs, if they lose, on a chance that one might recover €910. It seems to this Court that the appropriate court for appeals of decisions of the RTB is a court where the costs are commensurate with the money at stake, in this case that would be the District Court. However, the 2004 Act provides that appeals on a point of law from the RTB are made to the High Court without, it seems, any fixed costs for appeals such as these, and so one is left in a situation where an appellant risks several thousand euro in costs in order to appeal an award of €910.
Thousands of euro of taxpayers’ funds used in an appeal over hundreds of euro
27. It is not just individual landlords and tenants who are affected by the disparity between the cost of an appeal and the value of the appeal. It is also a matter that affects taxpayers. This is because the RTB is funded by the taxpayer, which means that the taxpayer is expending significant resources to defend appeals even though, if the RTB were a private-sector organisation it would have made financial sense for the RTB to simply concede the appeal and pay Mr. Tabuka the €910 award out of its own resources. This is because it would have made financial sense to pay the €910 to Mr. Nestor rather than incur thousands of euro in costs in fighting the appeal and risk an award of legal costs against the RTB and/or risk the chance that, even if the RTB won, it might not recover its costs from Mr. Nestor (if for example Mr. Nestor did not have the resources to pay the RTB).
28. While this would have been the financially sensible approach (if the RTB were a private-sector organisation), it is important to note that this Court is not suggesting that this would have the correct approach in this case.
29. This case does however highlight a more significant issue, namely that if the value of this case (€910, or indeed anything even close to that figure) is reflective of the value of appeals involving the RTB (and that may well be the case, since residential tenancies deal normally with relatively small monthly amounts of rent which are fractions of the €75,000 jurisdiction of the High Court and fractions of the costs involved), this cannot be a proper use of taxpayers’ funds. However, the law as it currently stands is that an appeal to the High Court is what is set down by the 2004 Act and it will remain so, unless the 2004 Act is amended.
Most expensive court chosen for the hearing of RTB appeals
30. It seems to this Court that the 2004 Act does not appear to have been drafted with the public in mind, since it cannot be in a tenant’s or landlord’s interests that the most expensive, rather than the cheapest, court is chosen for the hearing of their appeals. Undoubtedly it benefits the lawyers who are acting in such cases, since the fees for resolving an appeal in the High Court are many multiples of the fees for resolving an appeal in the District Court, but this approach would not appear to be benefit the public or the taxpayer.
31. It also seems to this Court that this situation epitomises some of the flaws in the current system of civil justice, where it does not always appear to have been designed with the financial interests of the users in mind. It seems to this Court that by concentrating litigation in the High Court (and so long as High Court litigation remains as expensive as it currently is), the civil justice system will live up to the well-known adage quoted extra-judicially by Kelly P. in the recent Bar Review (2018) Vol 23 No. 1 at page 1:
“Under the current system, as they say, the only people who can litigate in the High Court are paupers or millionaires”.
Yet ironically, s. 123(3) of the 2004 Act, as if oblivious to the foregoing adage, expressly provides that in relation to appeals between landlords and tenants over residential tenancies:
“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.” [emphasis added]
Lay litigants may not be aware of the risk of large costs awards against them
32. Mr. Nestor is a lay litigant and this may explain why he may have pursued this appeal to the High Court, as he is legally entitled to do, despite the massive difference between the money at stake (€910) and the thousands of euro in costs which could be incurred by him, if he lost.
33. Unlike losing his case before the Adjudicator or the RTB, where there is no costs order made against a losing landlord or tenant, if he loses his case in the High Court, the landlord/tenant will, save in exceptional circumstances have the huge legal costs of the winning side awarded against him, as well of course of paying his own lawyers (although in this case, Mr. Nestor is a lay litigant).
34. It is possible that if Mr. Nestor had sought legal advice, he would have been advised that while he had an appeal ‘in principle’ of the RTB decision to award damages against him of €910, the reality was that because of the enormous costs of High Court litigation, it would be foolish for him to pursue the appeal over that amount of money. In this regard, if such advice had been given it would have simply reflected the adage that litigation in the High Court, but not the District Court, is the preserve the very rich (who can afford to pay legal costs to the winning party, if they lose) and the very poor (who do not care if they lose since they do not have the funds to pay legal costs to the winning party).
Conclusion
35. For the reasons set out above, this Court would dismiss Mr. Nestor’s application for an order pursuant to Order 84C of the Rules of the Superior Courts against the Determination Order of the RTB.
36. Additionally, it is this Court’s view that for the reasons stated above, it is regrettable that the current appeal system for RTB decisions means that this appeal over a sum of €910 had to be heard in the High Court at a cost of many thousands of euro.
H111
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nowak & Anor -v- Residential Tenancies Board [2017] IEHC 111 (21 February 2017)
URL: http://www.bailii.org/ie/cases/IEHC/2017/H111.html
Cite as: [2017] IEHC 111
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Judgment
Title:
Nowak & Anor -v- Residential Tenancies Board
Neutral Citation:
[2017] IEHC 111
High Court Record Number:
2016 100 MCA
Date of Delivery:
21/02/2017
Court:
High Court
Judgment by:
Barrett J.
Status:
Approved
[2017] IEHC 111
THE HIGH COURT
(A) RECORD NO: 2016/100/MCA
(B) RECORD NO. 2016/173MCA
(C) RECORD NO. 2016/225MCA
BETWEEN:
PIOTR/PETER NOWAK AND AGNIESZKA NOWAK
align=”right”>APPELLANTS
AND
RESIDENTIAL TENANCIES BOARD
RESPONDENT
JUDGMENT of Mr Justice Max Barrett delivered on 21st February, 2017.
I. Overview
1. These proceedings concern a trio of appeals brought pursuant to s.123 of the Residential Tenancies Act 2004, as amended, against a determination of a Tenancy Tribunal: (A) on 12th February, 2016 (which appears to be the determination order to which the notice of motion makes reference when it refers to a determination issued on 19th February, 2016) (‘Appeal A’); (B) on 22nd April, 2016 (which appears to be the determination order to which the notice of motion makes reference when it refers to a notice of motion communicated on 25th April, 2016) (‘Appeal B’); and (C) on 21st June, 2016 (‘Appeal C’). For the reasons identified hereafter, the court must respectfully conclude that all of these appeals are without merit.
II. Applicable Law
2. The court recently considered the law and recent case-law governing s.123 appeals in Marwaha v. Residential Tenancies Board [2016] IEHC 308 and does not consider that further elaboration or recitation of the law is required herein, beyond noting again the relatively constrained role that the court has consistently been held to enjoy in s.123 appeals in judgments from Canty v. Private Residential Tenancies Board [2007] IEHC 243 through to, inter alia, Doyle v. The Private Residential Tenancies Board [2015] IEHC 724.
III. Common Failings
3. Before proceeding to consider Appeal A, Appeal B and Appeal C, the court notes a couple of common failings to each appeal brought:
– first, the Nowaks ought to have joined the landlords to the within appeals as the landlords’ interests are directly affected by same. This failure to join seems to be a consistent failure by tenants in the within form of appeals and results in the absurd situation that landlords regularly attend at the appeals, without technically being a party to same, even though their interests are directly affected by what the court may decide. There are only so many times that this point can respectfully be made before a consequence must follow for would-be appellants who do not join landlords, as they should, to appeals such as that now presenting.
– second, contrary to O.84C, r.2(3) of the Rules of the Superior Courts (1986), as amended, the notices of motion commencing the within appeal do not “state concisely the point of law on which the appeal is made”. The court is mindful in this regard that, as with the Nowaks, people bringing the within form of appeal often do so in person. In truth, the odds seem immediately stacked against tenant-appellants in this regard because they are invariably opposed in court, itself an alien and challenging forum, by counsel skilled in the law; in fact, so unevenly matched do the respective parties seem generally to be (though Mr Nowak put in a notably good ‘innings’) that the court must admit to some doubt whether the present system of appeal to the High Court is especially effective or efficient as an avenue of appeal, at least so far as tenants generally are concerned: when the unarmed meet the well-armed, the general outcome of battle seems likely to follow a certain course. But that is for another day; for now, mindful that the appellants are lay-litigants, the court is satisfied to overlook any deficiencies in the form of the notices of motion.
IV. Appeal A
(i) Background.
4. The Nowaks entered into a tenancy agreement with the landlords around 1st August, 2009. The original rent was €1.1k per month; in August, 2012, at the Nowaks’ request it was reduced to €1k per month. A summary chronology of the events leading up to the making of the determination order against which appeal is brought is set out hereafter:
19th September, 2014. The Nowaks submit an application for dispute resolution services pursuant to s.76 of the Residential Tenancies Act (RTA). (This application contested the validity of a rent increase from €1k to €1.25k per month, effective 1st October, 2014).
12th November, 2014. The Nowaks submit a second application for dispute resolution services. (This application alleged that the landlords failed to attend to various matters arising at the premises in a timely manner. It was also alleged that the Nowaks had been penalised by the management company and that the landlords had failed adequately to maintain the premises).
28th November, 2014. Adjudication hearing takes place.
12th February, 2015. Adjudicator’s report served on parties under cover letter dated 12th February. The letter advised, inter alia, that if the determination was not appealed within the statutory timeframe, the Board would, pursuant to s.121 of the RTA make an order reflecting same. Both landlord and Nowaks appeal.
29th October, 2015. Tenancy Tribunal appeal hearing proceeds.
[Some objection seems to be taken by the Nowaks to the identity of the person who chaired this hearing, it appears because she had heard a previous dispute involving Mr Peter Nowak. The court sees no basis for, or merit to, this objection. There is not a hint of any bias presenting. The fact that the same individual would participate in two hearings involving the Nowaks appears to the court to be testament to the sheer number of Tenancy Tribunal hearings that have involved the Nowaks, not to any deficiency in or concerning those hearings.]
12th February, 2016. Determination order that is the subject of Appeal A issues.
(ii) Objections and observations.
5. The Nowaks object to: (1) the market rent settled upon by the Tenancy Tribunal; (2) the fact that the Tribunal decided that they should be reimbursed for the purchase of one mattress, not two; (3) the (alleged) fact that the management company engaged in some form of victimisation of the Nowaks; (4) an alleged ultra vires determination by the Tenancy Tribunal as to the non-payment of rent.
6. As to (1)-(3), these are not points of law and it is points of law with which this Court is concerned in an appeal under s.123. As to (4), the Tribunal made no determination as to the finding of rent, though it does note in the body of its report that it has been confirmed to it by the parties that payment of rent has ceased. It is not ultra vires for a tribunal to note a fact that has been confirmed to it by parties. But even if it had been, the court does not see that any prejudice would arise for the Nowaks if the Tenancy Tribunal acting ultra vires (and the court reiterates that the Tribunal did not so act) found to be a truth what the parties in any event agreed was the truth. De minimis non curat lex (‘The law does not concern itself with trifles’); neither does it afford relief for incidental error (if error there be) of no consequence.
(iii) Some Common Conclusions Regarding Appeal A, Appeal B and Appeal C.
7. In his affidavit evidence, Mr Nowak purports to identify a number of points of law which he asks the court to consider. In truth, however, what he does is seek to engage in a ‘Q&A’ session on residential tenancy law (a) without tying in the points raised to the impugned decision of the Tenancy Tribunal and/or (b) in a manner that seeks through sleight of contention to impugn the substantive conclusions reached by the Tenancy Tribunal on the evidence before it. None of these points fall properly to be addressed within the parameters of the within appeal.
8. It appears to the court from the evidence before it that the Tenancy Tribunal afforded the parties an opportunity to present their respective cases, to engage in cross-examination and to make final submissions. In doing so the court does not see that the Tribunal departed in any respect from the principles of natural and constitutional justice, the provisions of the RTA or the provisions of the ECHR. Nor does the court see any other legal deficiency of any nature to present.
V. Appeal B
(i) Background.
9. Appeal B concerns the same tenancy arrangement as Appeal A. A summary chronology of the events leading up to the making of the determination order against which appeal is brought is set out hereafter:
3rd November, 2015 The Nowaks submit an application for dispute resolution services in the context of a rent arrears and over-holding dispute.
23rd November, 2015. Adjudication hearing takes place. The Nowaks do not attend.
8th December, 2015. Adjudicator’s report served on parties under cover letter dated 8th December. The letter advised, inter alia, that if the determination was not appealed within the statutory timeframe, the Board would, pursuant to s.121 of the RTA make an order reflecting same. The Nowaks appeal.
7th March, 2016. Tenancy Tribunal appeal hearing proceeds.
22nd April, 2016. Determination order that is the subject of Appeal B issues.
(ii) Objections and observations.
10. The Nowaks maintain that: (i) the level of rent arrears fixed by the Tenancy Tribunal were based on “non-existing and non-agreed terms of the tenancy”; (ii) certain damages awarded were erroneous on the basis that there was “no reasonable or coherent basis” for awarding same; (iii) costs were awarded without any reasonable basis; (iv) the Tribunal was biased and prejudiced.
11. As to (i) and (ii), these are objections to the conclusions reached by the Tribunal on the evidence before it and do not involve any point of law. As to (iii), the costs were awarded against the Nowaks pursuant to s.5(4) of the RTA; the court sees no basis in the evidence on which to interfere with this award of costs. As to (iv), bias appears to be alleged on two grounds. First, a Tenancy Tribunal member appears to have recognised from the papers before him that Ms Nowak is Mr Nowak’s sister. The court must admit that it is entirely mystified as to how the Tribunal member’s recognition of this acknowledged fact could constitute bias. Second, one of the Tribunal members appears to have sat on a previous Tribunal that heard complaints involving the Nowaks. That this should be so does not per se support a finding of bias. The fact that the same individual would participate in two hearings involving the Nowaks appears to the court to be but testament to the sheer number of hearings that have involved the Nowaks, not to any deficiency in those hearings or indeed in the RTB’s appeal system generally.
12. The same further conclusions fall to be reached in the context of Appeal B as were reached in respect of Appeal A under the heading “(iii) Some Common Conclusions Regarding Appeal A, Appeal B and Appeal C.”
VI. Appeal C
(i) Background.
13. Appeal C concerns the same tenancy arrangement as Appeal A. A summary chronology of the events leading up to the making of the determination order against which appeal is brought is set out hereafter:
25th February, 2016 The Nowaks submit an application for dispute resolution services.
29th February, 2016 The landlords submit an application for dispute resolution services.
22nd March, 2016. Adjudication hearing takes place. The Nowaks do not attend.
23rd March, 2016. Adjudicator’s Report served on parties under cover letter dated 23rd March. The letter advised, inter alia, that if the determination was not appealed within the statutory timeframe, the Board would, pursuant to s.121 of the RTA make an order reflecting same. The Nowaks appeal.
1st June, 2016. Tenancy Tribunal appeal hearing proceeds.
21st June, 2016. Determination order that is the subject of Appeal C issues.
(ii) Objections and observations.
14. The Nowaks object to the Tribunal’s requiring them to pay rent arrears in circumstances where, they claim, there is no “binding agreement (written or oral) relating to the rent payment”. This is an objection to the conclusion reached by the Tribunal on the evidence before it and does not involve any point of law. The same further conclusions fall to be reached in the context of Appeal C as were reached in respect of Appeal A under the heading “(iii) Some Common Conclusions Regarding Appeal A, Appeal B and Appeal C.”
VII. Conclusion
15. For the reasons stated above, the court is coerced as a matter of law to conclude that each of Appeal A, Appeal B and Appeal C must fail. No relief falls therefore to be ordered in favour of either appellant. The Nowaks ought now to pay all amounts outstanding to the landlords.
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Nowak & Anor -v- Residential Tenancies Board [2017] IEHC ~ (21 February 2017)
H471
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nowak & anor -v- Residential Tenancies Board [2016] IEHC 471 (29 July 2016)
URL: http://www.bailii.org/ie/cases/IEHC/2016/H471.html
Cite as: [2016] IEHC 471
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Judgment
Title:
Nowak & anor -v- Residential Tenancies Board
Neutral Citation:
[2016] IEHC 471
High Court Record Number:
2016 325 JR
Date of Delivery:
29/07/2016
Court:
High Court
Judgment by:
Humphreys J.
Status:
Approved
Neutral Citation [2016] IEHC 471
THE HIGH COURT
JUDICIAL REVIEW
[2016 No. 325 J.R.]
BETWEEN
PETER NOWAK AND AGNIESZKA NOWAK
align=”right”>APPLICANTS
AND
RESIDENTIAL TENANCIES BOARD
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016
1. The applicants seek leave to apply for judicial review in order to quash a determination of the Private Residential Tenancies Board dated 12th February, 2016 in an application between the applicants and their landlords, Andrea Hogan and Sinead Rossiter (necessary parties, not joined by the applicants), which fixed a market rent for their tenancy and deal with other related matters. The determination was communicated to the first named applicant under cover of a letter dated 19th February 2016, which he says was received on 22nd February, 2016.
2. On 7th April, 2016, the name of the board was changed to the Residential Tenancies Board.
3. The application was filed in the Central Office on 10th of May, 2016, within time. After an initial consideration of the papers, I directed that the respondent be put on notice. In that context I received further affidavit from the respondent sworn by Kathryn Ward and filed on 18th July, 2016.
The applicant’s affidavit of 15th July, 2016.
4. The applicant also sought to put in further evidence and swore an affidavit on 15th July, 2016 which begins as follows: “I, Peter Nowak, A DISCIPLE OF THE LORD JESUS CHRIST of [address] aged 18 years and upwards MAKE OATH and say as follows…”.
5. The Central Office declined to accept this affidavit, on the grounds that it did not comply with rules of court.
6. Order 40, r. 9 provides in pertinent part that “Every affidavit shall state the description and true place of abode of the deponent”. This reflects an approach going back to that pursuant to the Rules under the Supreme Court of Judicature (Ireland) Act 1877 (see Wylie Judicature Acts (1881) under O. XXXVI, r. 5 (p. 432)). The term “description” means “occupation”. Spaddacini v. Treacy (1888) 21 L.R. Ir. 553 is an interesting decision, involving the description and abode of two plaintiffs, the first a struck-off solicitor resident in Stillorgan Castle (now St. John of God’s) describing himself as “Esquire” and the other a grocer describing himself as a “gentleman”. Albeit in the context of a statutory requirement to specify trade, profession or occupation, Porter M.R. held that “gentleman” was not a sufficient description of a person (such as a grocer) who actually had an occupation. He observed that “No one has suggested that ‘human being’ would be the proper description” (at p. 559). Of course he had not met someone of Mr. Nowak’s inventiveness.
7. To my mind, fanciful descriptions such as “a disciple of the Lord Jesus Christ” do not constitute a description (in the sense of occupation) envisaged by O. 40, r. 9. If such a mode of description were permitted, one could not stop the next deponent describing themselves in the opening of an affidavit as a “Guardian reader” or the one after that as a “keen golfer”, and so on. No reductio is however required because we are firmly in absurdum from the off. It is hard to know which the applicant’s affidavit trivialises more, religion or court procedure.
8. The Central Office was entirely correct in refusing to accept this affidavit. The solicitor who took it should not have allowed it to be sworn in that form. I trust that the message will get through in order to avoid a repetition.
9. The applicant did not in fact seek to submit a revised affidavit despite knowing that the affidavit was unfiled. However in ease of the applicant I have nonetheless read this unfiled affidavit.
10. I should also mention that despite commencing the application as “Peter Nowak”, the applicant appeared to seek to change the title to read “Piotr/Peter Nowak”. Even if he uses two names, the proposed formulation is not appropriate for the title to legal proceedings.
The leave application
11. I have carefully considered the application in accordance with the Supreme Court decision in G. v. D.P.P. [1994] 1 I.R. 374. Four grounds are set out for the relief sought.
12. Firstly it is alleged that “the determination/decision making process suffered (sic) a breach of the internal tribunal procedures and was in contravention of provisions of the Residential Tenancies Act, 2004”. This appears to be a reference to an adjournment of the hearing which had been granted by the Tribunal on 15th June, 2015. Even if that adjournment was in some way contrary to the Tribunal’s procedures, that does not give rise to arguable grounds to quash the ultimate decision following a resumed hearing.
13. Secondly the statement of grounds alleges that “there was no reasonable, rational evidential basis upon which the respondent could have reached the decision to the effect as set out in the determination dated 12th February, 2016”. It is clear from para. 29 of Mr. Nowak’s affidavit that essentially he disagrees with the merits of the Tribunal decision. As regards the market rent fixed by the Tribunal he says “I believe [this] is too much what (sic) this property would command at that date in the light of the state and condition of the property”, referring to the market rent with effect from 1st October, 2014. It is alleged in the affidavit that a finding regarding non-entitlement or reimbursement of expenses was “erroneously” made, that points in the applicant’s favour were not upheld and that the Tribunal should not have determined an issue regarding non-payment of rent. With the exception of the last allegation (which is not however pleaded in the statement of grounds), these complaints relate to the substance or merits of the decision and not to its legality (see Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31st July, 2014) per Clarke J. at paras. 3.8 to 3.15). No facts have been put forward rendering it arguable that “there was no reasonable, rational evidential basis upon which the respondent could have reached the decision”.
14. The third ground for the relief sought is “bias and prejudice of the members of the Tribunal”. There are no facts deposed to which would support the arguability of a serious allegation of this kind.
15. It appears that during the hearing the applicants objected to the chairperson of the Tribunal on the grounds that she “had been a member of a Tribunal involving the same parties some years previously” (section 4 of the decision). This is not even arguably a basis for contending that objective bias exists or that the decision should be quashed.
16. Finally the applicant relies on “fraud by the Private Residential Tenancies Board”. This appears to be a reference to the fact that the Board sent a notification of the adjournment of the hearing on 15th June, 2015 due to a family emergency affecting the landlords’ agent at a time prior to an email from the chairperson of the Tribunal from that date granting the adjournment. Apparently the applicant made a complaint to the Garda Bureau of Fraud Investigation in relation to this alleged discrepancy (para. 24 of the grounding affidavit). The applicants also previously applied to the High Court for injunctive relief restraining the adjourned hearing pending the outcome of the investigation of the fraud complaint. This injunction was not granted (see para. 26 of the grounding affidavit). The pleadings in that application were not furnished to me. On the material furnished by the applicants, the allegation of fraud appears to be, at the most charitable, a huge overreaction and certainly not an arguable basis to quash the decision.
17. In the circumstances no arguable ground for challenging the validity of the decision has been shown. On the contrary, the proceedings appear to me to be frivolous and vexatious particularly when put in the context of a campaign of litigation by the applicants to which I will refer later.
The decision has been appealed
18. In any event, the decision in question is appealable to the High Court on a point of law pursuant to s. 123(3) of the Residential Tenancies Act 2004 within 21 days from the date of issue of the determination.
19. In fact as appears from Ms. Ward’s affidavit at para. 19 onwards, the applicants did appeal the decision on 10th March, 2016. This is not a case where a decision is formally appealed to preserve the position and the appeal parked pending judicial review. The applicant has actively moved the appeal on. The appeal appeared in the non-jury directions list on 13th June, 2016 when the applicants were directed to identify their full grounds of appeal. It returned on 27th June, 2016 when the applicants indicated they had filed a further affidavit setting out their grounds of appeal. It was back again on 18th July, 2016, when the respondent requested an adjournment but the applicant wanted the matter dealt with. This latter element is not formally deposed to but Mr. Nowak accepts that this is the case.
20. It is simply not open to a party to both actively appeal and challenge on judicial review the same decision. The applicant’s conduct in progressing the appeal disentitles them from proceeding with this application. To proceed as the applicants have done is to engage in legal frivolity.
21. In any event, if I am wrong about that, the appeal is a “more appropriate method of procedure” warranting refusal of leave as envisaged by Finlay C.J. in G. v. D.P.P. at p. 378.
The conduct of the applicants
22. The present judicial review application is the fifth High Court action instituted by the applicants. As well as this action, they have issued proceedings challenging three determinations of the respondent including the one duplicitously challenged here: the three appeals are in proceedings record numbers 2016 No. 100 MCA, 2016 No. 173 MCA and 2016 No. 225 MCA. In addition, they issued the already-referred to unsuccessful injunction proceedings, record No. 2016 No. 294 MCA, which resulted in an order for costs against the applicants made by Noonan J. on 19th October, 2015. There is no evidence that this has been satisfied. The respondent fairly characterises the approach taken as a decision “to appeal each and every determination made by the respondent if an order is not made in their favour” and a “tactic employed by the applicants to delay proceedings for as long as possible and to frustrate the proceedings before the respondent” (affidavit of Ms. Ward at para. 33). Apart from the frivolity and grandiosity that is manifest on the face of the present application, the approach of throwing out serious and unsubstantiated allegations of bias, and of responding to an adjournment application (prompted by the human exigency of a family emergency) with a complaint to the Garda Bureau of Fraud Investigation, does little for the reputation or credibility of the applicants.
23. The courts are not a playground in which litigants can amuse themselves at will. The State in all its manifestations may have enough time and patience to weather the efforts of frivolous litigants, but in an underlying private law context such as this, such conduct has a significant downstream effect on private persons such as the landlords in this case. For the court to bask in self-congratulatory patience for quirky insouciance on the part of applicants such as these (especially given the considerable effort made, and courtesy to the court shown, by the first named applicant) would be to play the role of a judicial free-rider; taking the feel-good benefit of immediate indulgence towards an applicant while shifting the social cost in dealing with the resultant mess to unheard private parties. Despite the natural preference for erring on the side of limitless indulgence, the balance of justice in such a situation calls for a more direct approach. I will hear the parties on whether any order should be considered limiting the applicants from engaging in future frivolous applications.
24. For the foregoing reasons I will order:
(i) that the Residential Tenancies Board be substituted as respondent in place of the Private Residential Tenancies Board, that the name of the first named applicant be stated as “Peter Nowak” in the title to the proceedings, and that Andrea Hogan and Sinead Rossiter be added as notice parties, lest the matter proceed in any other forum;
(ii) that the application for leave be dismissed; and
(iii) that the parties be heard on whether any order should be considered limiting the applicants from engaging in future frivolous applications.
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Private Residential Tenancies Board -v- Judge Linane [2010] IEHC 476 (23 April 2010)
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Cite as: [2010] IEHC 476
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Judgment Title: Private Residential Tenancies Board -v- Judge Linane
Neutral Citation: [2010] IEHC 476
High Court Record Number: 2009 441 JR
Date of Delivery: 04/23/2010
Court: High Court
Composition of Court:
Judgment by: Budd J.
Status of Judgment: Approved
Neutral Citation Number: [2010] IEHC 476
THE HIGH COURT
JUDICIAL REVIEW
2009 441 JR
BETWEEN
PRIVATE RESIDENTIAL TENANCIES BOARD
APPLICANT
AND
HER HONOUR JUDGE JACQUELINE LINNANE
align=”right”>RESPONDENT
AND
S & L MANAGEMENT COMPANY LIMITED
AND GARY MALLON
NOTICE PARTIES
JUDGMENT of Mr. Justice Declan Budd delivered on the 23rd day of April 2010
Background
These proceedings came before the High Court by way of judicial review proceedings in which the applicant is the Private Residential Tenancies Board (hereinafter referred to as the P.R.T.B.) which seeks an order of certiorari to quash the order of the respondent, Her Honour Judge Jacqueline Linnane, one of the Circuit Court judges who hear cases emanating from the Board. The application for judicial review is to quash the respondent’s order made on 3rd April, 2009 vacating a District Court order made on 11th April, 2008 and seeking an order of mandamus compelling the learned Circuit Court Judge to deal with a dispute which had arisen between the two notice parties involving the jurisdiction of the applicant Board and the jurisdiction or the lack thereof the respondent, as a judge of the Circuit Court, to deal with disputes brought by management companies for the recovery of service charges by reason of the wording of the Residential Tenancies Act 2004, (hereinafter referred to as the “R.T.A. 2004”). The contention made by the second named notice party, Gary Mallon, is that the applicant Board and not the respondent Circuit Court Judge had jurisdiction to entertain the hearing of the dispute in respect of service charges. The applicant seeks an order by way of certiorari to quash the respondent’s order made on 3rd April, 2009 vacating the District Court order made on 11th April, 2008 in respect of a liquidated sum in respect of four charges allegedly outstanding from the second named notice party, being the defendant in the District Court, in a case brought by the first named notice party, S&L Management Company Limited on behalf of the landlord of the apartments.
The factual background against which it is the applicant’s contention that the respondent erred in law in failing to interpret the legislation in accordance with the applicant’s contentions in relation to the intention of the Oireachtas in the legislation is explained as follows. The predecessor in title to the second named notice party was Gary Mallon’s mother, Niamh Mahon, who was referred to as “the Lessee” in an indenture of lease dated 23rd May, 2003 between Larry Mahon, James Grew and Peter Edwards, being referred to as “the lessor”, of the first part and S&L Management Company Limited (called “the Management Company”), of the second part and Niamh Mahon called “the Lessee” of the third part. The second named notice party’s predecessor had purchased apartment No. 62 on the third floor of an apartment building known as Elmfield Court, Ninth Lock Road, Clondalkin, Dublin 22, the demised premises which are set out in the First Schedule to the lease. Her successor, her son Gary Mallon now holds the same apartment for the residue of a term of 500 years from 1st November, 2002, subject to paying thereafter the yearly rent of €0.05 in every year or such increased rent as shall be payable pursuant to the provisions of the Seventh Schedule hereto, such rent to be paid in advance on 1st January in each year, the first payment thereof being a proportionate part of the said yearly rent to be paid on the execution of the lease. The first named notice party, the S&L Management Company Limited, had issued proceedings in the District Court for the recovery of service charges and obtained judgment for €1,862.56 on 11th April, 2008 against the second named notice party as defendant. The respondent held in a considered and careful reserved judgment dated 3rd April, 2009 that a dispute relating to the recovery of service charges concerning an apartment occupied by an owner under a long lease, the subject matter of an appeal from the District Court to the Circuit Court, fell outside the remit of the courts. The reasoning behind this order was that the court, after receiving written submissions and also after hearing verbal submissions, decided that the court had to have regard to the wording of the R.T.A. 2004, which appeared to state the proposition that the applicant Board has sole jurisdiction to deal with such disputes. For ease of reference, I propose to set out s. 182 which appears in Part 9 under the heading “Miscellaneous” in the R.T.A. 2004:-
“S. 182 (1) On and from the commencement of Part 6, proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution under that Part unless one or more of the following reliefs is being claimed in the proceedings –
(a) damages of an amount of more than €20,000,
(b) recovery of arrears of rent or other charges, or both, due under a tenancy of an amount, or an aggregate amount, of more than €60,000 or such lesser amount as would be applicable in the circumstances concerned by virtue of section 115 (3)(b) or (c)(ii).
(2) In this section ‘dispute’ has the same meaning as it has in Part 6.”
Part 6 of the R.T.A. 2004 deals with dispute resolution and in s. 75(3) it is stated:-
“S. 75 (3) For the purposes of subsection (2) ‘disagreement’ shall be deemed to include –
(a) any issue arising between the parties with regard to the compliance by either with his or her obligations as landlord or tenant under the tenancy,
(b) any matter with regard to the legal relations between the parties that either or both of them requires to be determined (for example, whether the tenancy has been validly terminated),
and, without prejudice to the generality of the foregoing, shall be deemed to include a claim by the landlord for arrears of rent to which the tenant has not indicated he or she disputes the landlord’s entitlement but which it is alleged the tenant has failed to pay.”
The covenants on the part of the Lessee in the Fifth Schedule of the Lease include paying rent and keeping the Lessor and the Management Company as the case may be indemnified from and against such service charges in respect of the apartment as are due under that schedule which includes the method of calculation of the service charges.
Since this matter comes before this Court by way of judicial review seeking orders of certiorari and mandamus, it is appropriate that I should set out the basis on which the matter came before the Circuit Court by way of an appeal by the defendant/appellant, Gary Mallon who is the second named notice party in this Court. The S&L Management Company Limited was the plaintiff/respondent in the District Court and Circuit Court, being the Management Company endeavouring to collect the service charges by way of a liquidated claim well within the ceiling for such claims either in the District Court or in the P.R.T.B., if it has the exclusive jurisdiction contended for by the second named notice party in this Court, Gary Mallon, on this judicial review.
The background has been clearly set out by the learned Circuit Court Judge and I propose to set out the first few paragraphs of her judgment which sets the scene and also disposes of several peripheral contentions that were made by the P.R.T.B. before tackling the crucial jurisdictional issues which have been raised on this judicial review.
In her judgment delivered on 3rd April, 2009 the learned Circuit Court Judge said:-
“This matter comes before the court by way of an appeal by the defendant from a decision of the District Court on 11th April, 2008 where the plaintiff obtained a decree against the defendant in the sum of 1,862.56 Euro in respect of service charges due under a Lease whereby the plaintiff is lessor and the defendant is the lessee. The defendant in fact purchased the apartment dwelling for a sum of €200,000 and is in occupation thereof and holds same for the residue of a term of 500 years subject to a yearly rent of €0.05. Counsel for the defendant has argued that this Court has no jurisdiction to deal with the matter on the basis that such a dwelling is not one of the specific exceptions set out in s. 3(2) of the Residential Tenancies Act 2004 (the 2004 Act). His argument is that there is a dispute capable of being referred to the P.R.T.B., the defendant is willing to so refer it and undertakes to do so or alternatively sign any form required to enable the plaintiff to so register the tenancy, and that the 2004 Act applied to his tenancy and the court has no jurisdiction in the matter. It would appear that the defendant some months ago tried to register the tenancy but this was rejected by the P.R.T.B. On 5th December, 2008, this Court made the P.R.T.B. a notice party and after hearing all submissions, written legal submissions have been submitted and considered by the court.
Counsel for the plaintiff adopts these submissions of the P.R.T.B. and has expressed concern that if this Court has no jurisdiction, it will be left without a remedy or forum to deal with the dispute. An argument has also been advanced on behalf of the plaintiff that the lease in question is not in reality a lease and does not create a relationship of landlord and tenant and also that the term ‘lease’ was used as a matter of expediency. With regard to the latter argument, it is clear that the lease in question incorporates all the usual features common in a genuine lease, including payment of rent, term, covenants etc. Accordingly, I do not accept that argument.
The argument of the P.R.T.B. is that as the tenancy is not registered, by virtue of s. 83(2) of the 2004 Act, the P.R.T.B. has no jurisdiction to deal with the dispute; that the plaintiff has already pursued an alternative remedy within the meaning of s. 91 of the Act and therefore the P.R.T.B. has no jurisdiction to deal with the matter and that the lease falls outside the remit of the 2004 Act so the P.R.T.B. has no role to play in the resolution of the dispute.
Section 83(2) of the 2004 Act provides that the Board shall not deal with a dispute in relation to a tenancy referred to it under this Part by the landlord of the dwelling concerned if the tenancy is not registered under Part 7. Accordingly, in the absence of registration the Board has no jurisdiction to deal with this dispute. Counsel on behalf of the P.R.T.B. makes the point that to date a dispute has not yet been referred to it. While s. 134 of the 2004 Act provides that the landlord of a dwelling shall apply to the Board to register the tenancy, so that only a landlord can register a tenancy, it is clear from the submissions of the P.R.T.B. and acknowledged in the affidavit of Mr. Tom Dunne, Chairperson of the P.R.T.B., that the Board has jurisdiction to deal with a dispute referred to it by a tenant (as opposed to by a landlord) even where the tenancy is not registered.”
At this stage I pause to make the comment that the affidavit of Tom Dunne sworn on 23rd April, 2009 at para. 6 recounted that the applicant P.R.T.B. received a registration form dated 15th October, 2008 from the second named notice party as tenant of the dwelling, 62 Elmfield Court, requesting the applicant P.R.T.B. to register the tenancy. The applicant, P.R.T.B. responded to this request by letter stating that a tenant cannot register a tenancy and that a landlord is the only party permitted to register a tenancy under the R.T.A. 2004. The applicant P.R.T.B. also wrote to the solicitor for the second named notice party by letter dated 19th November stating that a landlord is the only party permitted to register a tenancy and further asserting that the R.T.A. 2004, having regard to the full title, the short title and the construction of the sections and provisions of the Act only applied to “genuine landlord and tenant situations”. It is apparent from the last paragraph quoted in parenthesis above that the P.R.T.B. must have conceded in the Circuit Court that the P.R.T.B. had jurisdiction to deal with a dispute referred to it by a tenant even where the tenancy was not registered. As for the earlier point made on behalf of the applicant Board, being the contention that the lease in question was not in reality a lease and does not create a relationship of landlord and tenant and is merely a device expedient for the collection of service charges, while it may indeed be a useful mechanism for that purpose, the lease is referred to as “a lease” and incorporates all the usual features which one would expect to find in a lease including payment of rent, the terms of the lease and covenants.
The learned Circuit Court Judge then continued:-
“With regard to s. 91 of the 2004 Act relied upon by the P.R.T.B. – its argument is that as the plaintiff has brought court proceedings the P.R.T.B. has no jurisdiction to deal with the matter as an alternative remedy is being pursued – s. 91(1) provides that to the extent that an alternative remedy is available in respect of any dispute falling within this part, and a person takes any steps to avail himself or herself of that remedy, that person may not refer the dispute to the Board for resolution.
In my view this should be read in conjunction with the preceding section which refers to an arbitration agreement and provides that the matter can be dealt with by arbitration if the tenant so agrees. Furthermore, I find this argument inconsistent with s. 182(1) of the Act which provides that from the commencement of Part 6, proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution under that Part unless one or more the reliefs set out thereunder is being claimed in the proceedings – none of those reliefs apply in this instance.
I also find this argument inconsistent with one of the main objectives of the Act – that the P.R.T.B. as opposed to the court deal with certain disputes between landlords and tenants heretofore dealt with by the court – the aim of which was to enable such disputes to be dealt with and resolved in a speedy, efficient and cost effective manner (according to the long title to the Act) and obliged the landlord to register the tenancy. On the basis of the P.R.T.B.’s argument, a landlord could choose not to comply with its statutory obligation to register, but could instead issue court proceedings and then circumvent the provisions of Section 182 of the Act. It is also inconsistent with the attitude adopted by a tribunal of the P.R.T.B. in a case referred to by the defendant’s counsel in its submissions – in that case of Collins v. O’Connor the landlord issued Circuit Court proceedings against the tenant – it agreed not to pursue same if the tenant agreed to the Board dealing with the matter. It was then referred to a tribunal of the Board which proceeded to deal with the dispute on 26th February, 2007, on the basis it had jurisdiction so to do in the circumstances and notwithstanding the earlier institution of Circuit Court proceedings which were not pursued.”
Since it was the first named notice party, the management company which sued in the District Court for arrears of service charges, it seems to me that the learned Circuit Court Judge was correct that this was not a bar to the second named notice party making the case that under s. 182 that the proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution under that Part unless one or more of the reliefs set out thereunder is being claimed in the proceedings and when the position here is that none of those reliefs apply in this instance. I have indicated thus the preliminary aspects which were argued and disposed of in the Circuit Court.
The nub of this case is the applicant’s contention that the respondent Circuit Court Judge erred in law in coming to her decision that the provisions of s. 182 of the R.T.A. 2004 did apply and that proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution except in the circumstances set out in s. 182 above at (a) and (b) which are not applicable. The exception at (a) involves damages of more than €20,000 and the exception at (b) concerns arrears of rent or other charges or both of more than €60,000 and accordingly are not germane.
It is the applicant’s contention that the respondent erred in law in coming to her decision in that (i) it was never the intention of the Oireachtas to include owner occupied long leases within the ambit of the R.T.A. 2004, as the R.T.A. 2004 cannot accommodate nor facilitate the realities of a long lease; and (ii), if the R.T.A. 2004 were so to apply, many of the results would be wholly absurd.
The applicant also submits that the respondent’s judgment drew an inference from the fact that there was legislation pending before the Houses of the Oireachtas which would, if passed, explicitly exclude long leases from the remit of the R.T.A. 2004, and the reference to this impending legislation was wholly inappropriate in respect of the contemplation of the task of interpreting the provisions of the R.T.A. 2004. I propose to comment on this criticism of the learned trial judge straight away because this seems to me to be based on a misunderstanding. While it is a fact that written submissions in the Circuit Court did advert to the article by Dr. Áine Ryall of UCC, published in 2006 in CPLJ, this was referred to by the learned Circuit Court judge as an afterthought after she had expressed her view that, if the P.R.T.B. and the management company were correct in their argument that it was never the intention of the legislature that long leases of owner occupied apartments be included in the Act, then in the judge’s view, if that indeed was the intention, then the legislature should have expressly excluded such dwellings, as it did with other dwellings specified in s. 3(2). She went on to say that if the draftsperson omitted such a dwelling as this in error, then it was not the function of the court to add to any express statutory provisions to rectify such a mistake. The section is very clear and unambiguous and the function of the court in interpreting a statute is confined to ascertaining the true meaning of each statutory provision. It was only after she had said this and made the point that she had fully taken into account s. 5 of the Interpretation Act 2005, and the submissions made to her by counsel on behalf of the P.R.T.B. and the case law cited on this aspect, that the learned trial judge then added, as an afterthought, the reference to the article which had been referred to by counsel before her, and the fact that it had also been mentioned to her that the Housing (Miscellaneous Provisions) Bill 2008, contained a possible prospective amending provision to s. 3(2) of the 2004 Act, which was to specifically exclude a dwelling such as this from the ambit of the R.T.A. 2004 and this was apparently to be included as one of the exceptions listed in section 3(2). Furthermore, since the article by Dr. Áine Ryall is merely mentioned in a passing reference by the learned trial judge and since this article had been produced in written submissions in the Circuit Court, it was dutifully noted as part of the sequence of events in the evolving development in respect of the R.T.A. 2004, and was only mentioned by her as an afterthought to the statement of the ratio decidendi of her decision. Incidentally, I appreciate that the article describes the exceptions to the wide embrace of the ambit of the Act and enumerates each of the exceptions thereto, and so is factually and practically useful. In any event, I am not aware of any objection having been taken in the Circuit Court to the mention of the reference at the end of the article to the Housing Miscellaneous Provisions Act section as providing an amendment to the R.T.A. 2004, section 3. The Housing (Miscellaneous Provisions) Act 2009, was enacted on the 15th July, 2009, and at Part 7, s. 100 (2)(b), included amendments to the R.T.A. 2004, s. 3:-
“3. Notwithstanding the definition of “tenancy” in section 5(1), in this section a reference to a tenancy does not include a tenancy the term of which is more than 35 years.”
The effect of this would appear to be that a lease or tenancy which is for longer than 35 years is now excluded from the ambit of s. 3(1) of the R.T.A. 2004, where previously such a lease or tenancy was included in the ambit until being exempt from 15th July, 2009, by s. 100(2)(b) above set out adding section 3(3). Counsel for the second named defendant makes the point that the R.T.A. 2004 contains penal provisions with regard to the registration of dwellings as set out in s. 144 of the R.T.A. 2004. He submits that accordingly, the construction of the provisions of the Act which determine which dwellings are within the purview of the Act must be strictly construed (Mullins v. Harnett [1998] 4 IR 426). He submits that this underlines the imperative that the courts do not stray into the realm of policy making by excluding or including categories of dwellings to be excluded and, in particular, by specifying vague or ill defined categories of dwellings from the ambit of the R.T.A. 2004. He stressed cogently that it was for the legislature and not for the judiciary to define the length of the tenancy or lease which would qualify a long tenancy or lease for exclusion from the ambit of the 2004 Act. Thus, the courts should refrain from trespassing on the legislative preserve of the Oireachtas.
I now return to the applicant P.R.T.B.’s counsel’s contention that the learned trial judge was in error in the construing of the R.T.A. 2004 as not applying to the provisions of a long lease. Section 3(2) of the R.T.A 2004 excludes certain dwellings from the remit of its provisions. Counsel for the second named defendant, Gary Mallon, submits therefore, that unless a dwelling falls outside the remit of the R.T.A. 2004 pursuant to s. 3(2), the dwelling will be an appropriate and eligible dwelling for the purposes of dispute resolution, subject to certain conditions being satisfied, under the R.T.A. 2004. Once a dwelling falls within the remit of the 2004 Act, then the tenancy becomes subject to the entire legislative scheme of its proceedings. For ease of reference, I propose to set out s. 3 unamended of the R.T.A. 2004 in its entirety.
“3(1) Subject to subsection (2), this Act applies to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act).
(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings
(a) a dwelling that is used wholly or partly for the purpose of carrying on a business, such that the occupier could, after the tenancy has lasted 5 years, make an application under section 13(1)(a) of the Landlord and Tenant (Amendment) Act 1980 in respect of it,
(b) a dwelling to which Part II of the Housing (Private Rented Dwellings) Act 1982 applies,
(c) a dwelling let by or to
(i) a public authority, or
(ii) a body standing approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act 1992 and which is occupied by a person referred to in section 9(2) of the Housing Act 1988,
(d) a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 , the fee simple in respect of it,
(e) a dwelling occupied under a shared ownership lease,
(f) a dwelling let to a person whose entitlement to occupation is for the purpose of a holiday only,
(g) a dwelling within which the landlord also resides,
(h) a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling,
(i) a dwelling the subject of a tenancy granted under Part II of the Landlord and Tenant (Amendment) Act 1980 or under Part III of the Landlord and Tenant Act 1931 or which is the subject of an application made under section 21 of the Landlord and Tenant (Amendment) Act 1980 and the court has yet to make its determination in the matter.”
It is to be noted that while s. 3(2)(d) does exclude “a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978, the fee simple in respect of it”, and excludes at (g), “a dwelling within which the landlord also resides”, and excludes as well various other categories of dwellings at (a), (b), (c), (e), (f), (h), and (i). However, there is no exclusionary provision in respect of a long tenancy or lease nor is such “a tenancy” or “lease” defined or carefully described, with specified length, terms and features, as in several of the other paragraphs excluding dwellings. Nor is there any such carefully designed exclusionary provision in respect of any expected hypothetical paragraph 3(2((j). Counsel for the applicant contends that, although there is no explicit provision which removes long leases from the ambit of the R.T.A. 2004, yet nevertheless it is implicit from the provisions of the entirety of the Act that it does not contemplate the type of lessor and lessee relationship created by a long lease. Counsel for the applicant P.R.T.B. submits that it is clear that there was no intention on the part of the Oireachtas to accommodate long leases of owner occupied apartments in the R.T.A. 2004 when one has regard to the Act as a whole. He submits that the counter argument, which points to the absence of such an exclusionary paragraph (j) facilitating an escape from the wide embrace of subsection (1) of section 3 of the R.T.A. 2004, amounts in effect to contending for an “ultra literalistic interpretation” of the R.T.A. 2004 in a way which would lead to “a pointless absurdity”. In using this phrase he is referring to and echoing the graphic words of Henchy J. in the case of Nestor v. Murphy [1979] I.R. 326 at 330. Counsel goes on to contend that by adopting a literal interpretation of the R.T.A. 2004 the respondent, the learned trial judge, fell into error which went to the heart and core of the jurisdiction and in respect of this submission he relies on comments made by Henchy J. in The State (Holland) v. Kennedy [1977] I.R. 193. Before analysing the relevance of these two cases I propose, for ease of reference, to set out the provisions of s. 5 of the Interpretation Act 2005 which states as follows:-
“5(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) –
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of –
(i) in the case of an Act to which paragraph (a) of the definition of ‘Act’ in section 2 (1) relates, the Oireachtas, or,
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where the intention can be ascertained from the Act as a whole.”
Counsel for the applicant contends that, as he submits is required by s. 5 of the Interpretation Act 2005, the respondent ought to have applied a purposive interpretation to the R.T.A. 2004, so as to achieve what was intended by the legislature. Section 5 of the Interpretation Act 2005, he submits, provides that if in construing a provision of any Act (a) that is obscure or ambiguous, or (b) that on a literal interpretation a provision of an Act would be obscure or ambiguous, absurd or would fail to reflect the plain intention of the Oireachtas, then the provision should be given a construction that reflects the plain intention of the legislature, where the intention can be ascertained from the Act as a whole. He submits that courts may consider the enactment as a whole entity in order to identify the scheme envisaged by an enactment which is to be considered as an entirety. It is presumed that the legislature intends to create logical and smooth working schemes to achieve its legislative objective. He contends that consideration of the purpose allows the Court to go beyond pure strict textualism and to consider the intended objectives of the legislation. The consequences of a statute are legitimate considerations in interpretation. It is presumed that the legislature does not intend its provisions to have absurd, impractical and inconvenient results. Accordingly, counsel says that it is the applicant’s submission that the respondent’s decision has created incongruous results and fails to reflect the intention of the legislature. In short, he laments that the respondent held that she could not adopt a more teleological or purposive approach.
It may be helpful if I interject to make clear that the opposition of counsel for the second named defendant to this contention of the P.R.T.B. is based on the premise that the clear meaning of s. 3 is as stated simply and plainly in the wording of Section 3 as set out above. Furthermore, there is no subsection (j) excluding a long lease from the embrace of s. 3(1) or defining what the legislature regards in this context as the features of such a long lease and its essential characteristics and its vital time frame, thus maintaining the stance that the intention of the legislature is to be derived from the words of the R.T.A. 2004 as a whole and from the phrases actually enacted which mean what they say and are neither obscure, ambiguous or absurd. Moreover since the drafter and the legislature have tackled the task of setting out the exclusionary provisions in s. 3(2)(a) to (i), but have not mentioned a long tenancy or lease or defined it with the meticulousness and care of the other exclusionary provisions in (a) to (i), then the maxim embodied in the canon of construction expressio unius est exclusio alterius meaning “to express one thing is to exclude another” appears in the context to be apt, in point and to apply. This canon is an aspect of the principle expressum facit cessare tacitum which translates or as “something expressed nullifies what is unexpressed” or “what is expressly made (provided for), excludes what is tacit”. David Dodd in his useful “Statutory Interpretation in Ireland” at p. 145 in para. 5.89 states:
“Where the legislature in the text deems it appropriate to expressly cater for particular matters, and could have included other matters, but did not, then the inference arises that such omissions are deliberate and that such matters are intended to be excluded from the provision. The maxim is at its strongest where the legislature enumerates certain matters connected by a common theme, class or category, as opposed to covering them by general words, but omits certain things from the list. The maxim operates by indicating the legislature’s intention by implication or inference.”
The second matter to be remembered is that the Interpretation Act 2005 must be construed in a manner consistent with the Constitution and in particular, Article 15.2 thereof in respect of the legislative preserve of the Oireachtas. In this regard, the Interpretation Act should not be used as a device to enable the courts to legislate. Counsel for the applicant conceded that s. 3(2) excludes certain specific types of dwellings from the remit or inclusive ambit of the R.T.A. 2004. It apparently has been stated that the list in that s. 3(2) is exhaustive and cannot be supplemented save by amending legislation and that this is accepted by the second named notice party as being correct. It is noted that the nine categories of the dwellings are specified with considerable precision as qualifying for exclusion. Neither counsel for the applicant nor counsel for the second named notice party had submitted that the dwelling in this case belongs to any of the exclusionary categories listed. Thus the only way in which the dwelling in this case can be removed from the ambit of the Act in the submission of the second named notice party is by an explicit insertion into s. 3(2) of the Act of a further exclusionary provision assuming that the list cannot be supplemented otherwise. Thus the second named defendant is contending that a formula of words excluding a long lease and defining a long lease for the purposes of exclusion is explicitly required. Secondly, counsel for the second named notice party submits that to imply a further exception at s. 3(2) amounts to legislation. Counsel submits on behalf of Mr. Mallon that any exception must be specified with a degree of precision similar to the nine existing exceptions. Moreover he contends that it simply cannot be for the courts each time to hear conflicting arguments and then to hold in case after case whether or not a dwelling can be the subject of an implied exception until the point is reached when it can be said with certainty that a dwelling is or is not within the remit of the Act. This second ground of opposition to the applicant’s contention that a purposive approach to the construction of the Act should be applied is based on the doctrine of the separation of powers, as outlined in Article 15.2.1 of the Constitution of Ireland:-
“1°. The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.
2°. Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.”
Counsel for Mr. Mallon contends that the provisions of s. 5 of the Interpretation Act 2005 must be construed in a manner consistent with the Constitution and in particular, Article 15.2 thereof cannot be used as a device to enable the courts to legislate. There is support for this in the case of McGrath v. McDermott [1988] I.R. 258, where Finlay C.J. held at p. 276:-
“The function of the courts in interpreting a statute of the Oireachtas is, however, strictly confined to ascertaining the true meaning of each statutory provision, resorting in cases of doubt or ambiguity to a consideration of the purpose and intention of the legislature to be inferred from other provisions of the statute involved, or even of other statutes expressed to be construed with it. The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the courts appear desirable. In rare and limited circumstances words or phrases may be implied into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objective. What is urged upon the court by the Revenue in this case is no more and no less than the implication into the provisions of either s. 12 or s. 33 of the Act of 1975 of a new subclause or sub-section providing that a condition precedent to the computing of an allowable loss pursuant to the provisions of s. 33, sub-s. 5, is the proof by the taxpayer of an actual loss, presumably at least coextensive with the artificial loss to be computed in accordance with the sub-section.
In the course of the submissions such a necessity was denied but instead it was contended that the real, as distinct from what is described as the artificial, nature of the transaction to be looked at by the court, and that if they were, the section could not apply to them.
I must reject this contention. Having regard to the finding in the Case Stated, that these transactions were not a sham, the real nature, on the facts by which I am bound, of this scheme was that the shares were purchased and the purchaser became the real owner thereof; that shares were sold and the vendor genuinely disposed thereof and that an option to purchase shares really existed in a legal person legally deemed to be connected with the person disposing of them.
In those circumstances, for this Court to avoid the application of the provisions of the Act of 1975 to these transactions could only constitute the invasion by the judiciary of the powers and functions of the legislature, in plain breach of the constitutional separation of powers.”
In short, the opposing contention to the applicant’s submission for a widely extended interpretation is that the listing of exceptions to the provisions of s. 3 is clear and is expressed to apply to every dwelling the subject of a tenancy unless expressly excluded in subparas. (a) to (i) of section 3(2). Because of the listing of exceptions to the Act in s. 3 it is clearly implied that any dwelling, subject to a lease which is not explicitly excepted, is included within the ambit of s. 3 (1). Having set out the two conflicting contentions in respect of the interpretation of this legislation, I now propose to set out the bones of the two conflicting view points on this and also the arguments put forward citing case law assisting in the construction of the two opposing contentions.
The applicant P.R.T.B.’s approach to interpreting the legislation
The applicant’s submission is that the respondent trial judge’s decision has created absurd results and has failed to reflect the intention and purpose of the legislature. Counsel for the applicant refers to s. 5(1) of the Interpretation Act 2005, which I reiterate for ease of reference:-
“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) –
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of –
(i) in the case of an Act to which paragraph (a) of the definition of ‘Act’ in section 2(1) relates, the Oireachtas, or,
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where the intention can be ascertained from the Act as a whole.”
When one considers s. 3(1) indicating the applicability of the provisions of the R.T.A. 2004 “to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act)”, there is neither obscurity nor ambiguity about the wording. The ambit of the application of the provisions of the Act is clearly wide yet subject to the exceptions specifically enumerated and set out in subparas. (a) to (i) in section 3(2). Each of the exceptions in the subparas. (a), (b), (c), (d), (e), (f), (g), (h), and (i) are carefully set out and precisely worded and so it is clearly difficult to argue that the provision is obscure or ambiguous. Furthermore at subs. 3(2)(d) it is stated that:-
“a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978, the fee simple in respect of it.”
It is clear that the drafter contemplated dwellings held under a lease of a length sufficient to qualify under the grounds rents legislation. The maxim expressio unius est exclusio alterius can be translated as “to express one thing is to exclude another” and in this case it would seem that where the legislature has deemed it appropriate expressly to prescribe in the text particular matters for exclusion from the wide ambit of s. 3(1), it could have included such significant qualifying criteria for such a long lease, by setting out provisions as to what it regarded as the appropriate features as to length of term, covenants and other essentials of such a long lease. Since the Oireachtas has chosen not to do this, then the inference arises that such an omission is deliberate and that such matters as the inclusion of a long lease among the exceptions has been considered and deliberately excluded. Accordingly the inference can be taken that since a long lease has not been mentioned nor delineated and described that such an obvious candidate for exclusion from the ambit and embrace of the R.T.A. 2004 has been deliberately omitted and was intended by the Oireachtas to be left out from among the categories specifically excluded from the wide ambit of the provisions of section 3(1). The maxim is taken to be especially strong where the legislature has enumerated certain matters connected by being in a category, but then specifically does not include a particular matter in the category but actually omits this particular expected eligible item from inclusion. It is ironic and somewhat confusing that this omission is from the category of being among the matters subject to exclusion from the wide ambit of the general embrace of section 3(1).
I note for completeness that the Explanatory Memorandum to the R.T.A. 2004 expressly states: “This memorandum is not part of this Act and does not purport to be a legal interpretation. It outlines at p. 1 that “s. 3 spells out the scope of this Act. It does not apply to formerly rent controlled and long occupation lease tenancies size=”2″ face=”Verdana”> and to holiday or business lettings. It also does not apply to owner-occupied or social housing”. (Underlining added). It is noteworthy that s. 3(2)(f) and (g) of the R.T.A. 2004 itself, unequivocally mentions holiday, formerly rent controlled, business and owner-occupied dwellings for exclusion but omits the mention of long occupation lease tenancies in this category.
Counsel for the applicant criticised the learned trial judge for the reference to Dr. Ryall’s article and I do not propose to rely on either the comment in her article about the then anticipated legislation or on the contents of the explanatory memorandum, apart from commenting that if the drafter did intend to exclude some types of long leases, then why was this category not included at a subpara. (j) for clarity and certainty, particularly when other categories to be excluded were carefully enumerated, defined, described and set out.
Since s. 3 of the R.T.A. 2004 is neither obscure nor ambiguous, counsel for the applicant concedes this and instead contends that on a literal interpretation the provisions of s. 3 would be absurd or would fail to reflect the plain intention of the 2004 Act and the provision should be given a construction that reflects the plain intention of the Oireachtas where the intention can be ascertained from the Act as a whole. Counsel points out that the courts may analyse the enactment as a whole in order to identify the scheme envisaged by such an enactment considered in its entirety and also submits that it is presumed that the legislature intends to create logical and smooth working schemes to achieve its legislative objective. The court can contemplate the intended objectives of the legislation and the consequences of a statute which are legitimate considerations for the purpose of interpretation. The applicant’s submission is that the respondent trial judge’s decision has created absurd results and fails to reflect the intention of the legislature.
As an aid to interpreting legislation, counsel refers to Bennion’s Statutory Interpretation, 5th Ed. at Part XXI entitled “Construction against ‘Absurdity’” which recites in that context a number of presumptions and principles which should be applied when interpreting legislation. Firstly, there is a presumption that an absurd result is not intended by the legislature. Absurd in this context means “out of harmony with reason or propriety; incongruous, unreasonable, illogical”. He adopts Bennion’s phrase at p. 969 that “the court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of ‘absurdity’, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter mischief”. Counsel for the applicant relies on several cases to illustrate the construction against absurdity. In Nestor v. Murphy [1979] I.R. 326 the provision in question was s. 3 (1) of the Family Home Protection Act 1976 which stated:
“Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then … the purported conveyance shall be void.”
The defendant husband and wife had executed a contract whereby they agreed to sell and assign their house to the plaintiff. The defendants failed to complete the sale and the plaintiff claimed in the High Court an order directing specific performance by the defendants of the contract of sale. At the hearing of the plaintiff’s action the defendants contended that the contract for sale was rendered void by the provisions of s. 3 subs. 1 of the Act of 1976 because the defendant wife had not given her written consent to the making of the contract of sale prior to the execution thereof. The High Court ordered the specific performance by the defendants of the contract of sale. On appeal by the defendants it was held by the Supreme Court (Henchy, Kenny and Parke JJ.) in disallowing the appeal that the purpose of the Act of 1976 precluded an interpretation of s. 3, subs. 1 which would have the result of applying the provisions of that subsection to a conveyance or contract for sale which had been executed by both spouses by mutual consent. At p. 328, Henchy J. explained why the Supreme Court was ordering a specific performance.
“A surface or literal appraisal of s. 3, sub-s. 1 might be thought to give support to the defendant’s objection to the contract . . . . That subsection states:- ‘Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to subsections (2) and (3) and section 4, the purported conveyance shall be void’. Subsections 2 and 3 of s. 3 and s. 4, are not applicable to this case. By reason of the definition in S. 1 subs. 1 the contract signed by the defendants is a ‘conveyance’. Therefore, the argument runs, the provisions of s. 3 sub-s. 1 make the contract void because a spouse (the husband), without the prior consent in writing of the other spouse, “conveyed” an interest in the family home to the plaintiff.
The flaw in this interpretation of s. 3 subs. 1, is that it assumes that it was intended to apply when both spouses are parties to the ‘conveyance’. That, however, is not so. The basic purpose of the subsection is to protect the family home by giving a right of avoidance to the spouse who was not a party to the transaction (underlining added). It ensures that protection by requiring, for the validity of the contract to dispose and of the actual disposition, that the non-disposing spouse should have given a prior consent in writing. The point and purpose of imposing the sanction of voidness is to enforce the right of the non disposing spouse to veto the disposition by the other spouse of an interest in the family home. The subsection cannot have been intended by Parliament to apply when both spouses join in the ‘conveyance’. In such event no protection is needed for one spouse against an unfair and unnotified alienation by the other of an interest in the family home. The provisions of s. 3, subs. 1, are directed against unilateral alienation by one spouse. When both spouses join in the ‘conveyance’, the evil at which the sub-section is directed does not exist.
To construe the sub-section in the way proposed on behalf of the defendants would lead to a pointless absurdity. As is conceded by counsel for the defendants, if their construction of s. 3 subs. 1 is correct, then either the husband or the wife could have the contract declared void because the other did not give a prior consent in writing. Such an avoidance of an otherwise enforceable obligation would not be required for the protection of the family home when both spouses have entered into a contract to sell it. Therefore, it would be outside the spirit and purpose of the Act.
In such circumstances we must adopt what has been called a schematic or teleological approach. This means that s. 3, sub-s. 1 must be given a construction which does not overstep the limits of the operative range that must be ascribed to it, having regard to the legislative scheme as expressed in the Act of 1976 as a whole. Therefore the words of s. 3, subs. 1 must be given no wider meaning than is necessary to effectuate the right of avoidance given when the non-participating spouse has not consented in advance in writing to the alienation of any interest in the family home. Such a departure from the literal in favour of a restricted meaning was given this justification by Lord Reid in Luke v. Inland Revenue Commissioners [1963] 1 A.C. 557 when he said at p. 577 of the report:-
‘To apply the words literally is to defeat the obvious intention of the legislation and to produce a wholly unreasonable result. To achieve the obvious intention and produce a reasonable result we must do some violence to the words. This is not a new problem, though our standard of drafting is such that it rarely emerges. The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result that the words of the enactment must prevail.’”
Counsel for the applicant then submits that to include long leases within the remit of the R.T.A. 2004 creates absurd results. He submits, for example, that Part II of the R.T.A. 2004 sets down a list of minimum obligations which both the landlord and tenant must comply with and which are implied into every tenancy agreement. Under s. 12 of the R.T.A. 2004, the landlord’s repair obligations include compliance with the minimum standards set down in the Housing (Miscellaneous Provisions) Act 1992 at all times and this is not limited to external structures but includes structures within the dwelling itself such as repairs and replacement of fittings as are necessary from time to time. The landlord must also reimburse the tenant for any expenses for carrying out repairs to the structure or the interior of the dwelling. He points out that this is in stark contract to the lease agreement between the first named notice party and the second named notice party by the S. & L. Management Co. Ltd. and Gary Mallon, where the management company is only responsible for the external structure and common areas. To impose further repair obligations on a management company where they are also responsible for repairs to the interior of the dwelling would not only be unworkable, given the role a management company ordinarily plays but it would increase the service charges which the management company would have to charge to carry out such repairs, etc. for all of its lessees. This would apply to all management companies as it is standard in long leases of this kind that a management company would only be responsible for the external structure and common areas. Secondly, counsel submitted that from the second named notice party’s perspective, pursuant to s. 16 of the R.T.A. 2004, a tenant must allow the landlord access to the dwelling at reasonable intervals, notify the landlord of any defect in the premises which needs repair including the interior of the dwelling, and must inform the landlord of all persons ordinarily residing in the dwelling, not assign or sublet without the written consent of the landlord and not to alter or improve the dwelling without the written consent of the landlord (which includes the painting of the dwelling). He makes the point that there is a radical difference between the obligations under the R.T.A. 2004 and the obligations of both parties under the lease agreement. He submits that these statutory minimum obligations would have to be implied into the lease agreement as a result of the respondent’s decision. For example, under para. 4 of the fifth schedule of the lease agreement dealing with lessee covenants, the lessee is required to keep the “premises and all parts thereof and all fixtures and fittings therein and all additions thereto in good and tenantable state of repair, decoration and condition throughout the continuance of this demise including the renewal and replacement of all worn or damaged parts and shall maintain and uphold and whenever necessary for whatever reason reconstruct and replace the same and shall yield up the same at the determination of this demise, in such good and tenantable state of repair, decoration and condition”. This provision imposes the primary repair obligation on the second named notice party and also imposes an obligation on him to “reconstruct and replace” which under the 2004 Act is imposed on the landlord. In fact, if a tenant carries out repairs under the R.T.A. 2004 Act, the landlord must reimburse him or her for any expenses incurred. It is clear that the two types of “tenancies” operate entirely differently and the tenancy before the court could not have been envisaged by the legislature as falling under the ambit of the R.T.A. 2004. However, more importantly, although it is possible to create more favourable terms for the tenant pursuant to under s. 18(2) of the R.T.A. 2004, it is the applicant’s position that imposing a repair obligation on the tenant is certainly not more favourable to the tenant and is contrary to s. 18 of the R.T.A. 2004 and would therefore be void. This is a standard clause contained in long leases and all such clauses would be deemed void if the dwelling were to fall within the ambit of the R.T.A. 2004. This absurd result would lead to radical changes to the relationship of a lessor and lessee where properties have been purchased under similar long leases. Counsel continues in this vein by referring to the anomaly of rent reviews when the lease dated 23rd May, 2003 in this instance has a peppercorn rent of €0.05 per annum. This was never a market rent but it would be open to the first named notice party to seek a rent review which would increase the rent owed so it would be set at a market rent, which even would prejudice the second named notice party substantially and would also trouble thousands of other lessees of other apartments who are holding under similar leases. Counsel also refers to the difficulty that would arise if the second named notice party wanted to let the flat and would have to seek permission to do this from the first named notice party, S. & L. Management Co. There are also the difficulties which counsel points out as existing if the provisions of the R.T.A. 2004 are applied to such a lease as that under which the second named defendant holds the apartment. Certainly the application of the terms of the R.T.A. 2004 to this lease does bring several incongruities and anomalies to the fore and into the glare of reality, albeit we have not yet set out the counter-arguments on behalf of the second named notice party. However, even at this stage it may be useful to remark that at the core of this case is the substantive point succinctly made by the learned trial judge who said at the bottom of p. 3 of her judgment:-
“While the argument put forward on behalf of both the plaintiff and the P.R.T.B. is to the effect that it was never the intention of the legislature that long leases of owner occupied apartments be included in the Act, in my view if that was the intention then the legislature should have expressly excluded such dwellings as it did with other dwellings specified in s. 3(2). If the draftsperson omitted such a dwelling as this in error then it is not the function of the court to add to any express statutory provision to rectify such a mistake. The section is very clear and unambiguous and the function of the court in interpreting a statute is confined to ascertaining the true meaning of each statutory provision. In this regard I have fully taken into account s. 5 of the Interpretation Act 2005 and the submissions made to me by counsel on behalf of the P.R.T.B. and the case law cited on this aspect.”
Counsel for the applicant further contends that the literal interpretation of the legislation as adopted by the respondent fails to reflect the plain intention of the legislature. In numerous decisions, reference is made to the primary aim of statutory interpretation which is the discernment of the intention of the legislature. In Mulcahy v. Minister for Marine, (Unreported, High Court, Keane J., 4th November, 1994), stated at p. 23 that:-
“While the court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the court from departing from the literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole.”
In Rahill v. Brady [1971] I.R. 69 at p. 86 Mr. Justice Gardner Budd stated that:-
“While the literal construction generally has prima facie preference, there is also the further rule that in seeking the true construction of a section of an Act the whole Act must be looked at in order to see what the objects and intentions of the legislature were.”
Thirdly, in C. (R) & Others v. Minister for Health [2008] 1 I.E.S.C. 33 at p. 36, Finnegan J. (in the Supreme Court; Murray, Kearns, Finnegan JJ.) stated that
“The Interpretation Act 2005, section 5 permits a departure from a literal interpretation where it fails to reflect the plain intention of the Oireachtas and instead allows the giving of a construction that reflects the plain intention.”
Murray C.J. agreed with Finnegan J. in this case.
Counsel went on to cite cases which indicate that it is not always necessary to exclude in express terms matters that are fundamentally foreign to the policy or purpose of an Act. In Hutch v. The Right Honourable The Lord Mayor Alderman & Burgesses of Dublin [1993] 3 I.R. 551 the applicant made a claim under the Malicious Injuries Act 1981 in respect of property which represented the proceeds of crime. Counsel for the applicant submitted that if the legislators wanted to exclude the entitlement to compensation, it would have been easy for the legislature to so provide. The Supreme Court rejected this view at p. 564 holding that ‘it is not necessary for the legislation to exclude in express terms something which is fundamentally foreign to its policy and purpose’. Similarly in Representatives of Terence Chadwick deceased and Sheelagh Davis Goff v. Fingal County Council [2004] 1 ILRM 521, the applicant contended that the Planning and Development Act 2000 provided for compensation arising from compulsory purchase even where there was no actionable wrong. This was rejected by O’Neill J. at p. 538 stating that:-
“The principle that no compensation should be paid where the injury would not otherwise attract damages is of course not expressly included in s. 63 or in any other provision of the Act of 1845. The proposition stated in this principle would appear to me to be so obvious as to hardly require express statement. If this were an issue of interpretation of a contract in which it was claimed that the above principle was an implied term, I would have no hesitation in concluding that the ‘bystander test’ was satisfied.”
Counsel for the applicant further drew support from the long title setting out the purpose of the R.T.A. 2004 in that the long title identifies the remit of the legislation as being inter alia an Act which will provide:-
“(b) For amendments of the Law of Landlord and Tenant in relation to the basic rights and obligations of each of the parties to tenancies of certain dwellings,
(c) with the aim of allowing disputes between such parties to be resolved cheaply and speedily, for the establishment of a body to be known as . . . the Private Residential Tenancies Board and the conferral on it of powers and functions of a limited nature in relation to the resolution of such disputes.”
The main change introduced by the R.T.A. 2004 was the establishment of the Private Residential Tenancies Board to deal with disputes between landlords and tenants of certain dwellings whose functions and powers would be of a limited nature. The R.T.A. 2004 provides for a measure of security of tenure for tenants which security will operate in four year cycles, specified minimum obligations applying to landlords and tenants which cannot be contracted out of, rent to be determined by the concept of market rent and termination of tenancies to be assessed by gradated notice periods linked to the duration of a tenancy. Once a dwelling to which the R.T.A. 2004 applies then it is not possible to contract out of its provisions.
Counsel for the applicant drew attention to the fact that there are a number of examples in the legislation which illustrate that it was not the intention of the Oireachtas to cater for long leases. These are as follows:-
(a) The Part 4 provisions envisage tenancies operating in four year cycles. Although it is possible to create more favourable security of tenure provisions for a tenant, creating a lease for a period of 500 years when the maximum period afforded under the 2004 Act is four years is an indication that the legislature never intended to cater for leases of such a lengthy nature.
(b) Linked with (a) is the requirement to register a tenancy at the commencement of each four year cycle. A management company would be required to register the tenancy every four years of the 500 year lease incurring further costs for the lessee.
(c) In the event of the second named notice party wishing to sublet the dwelling, then a subtenant would have automatic Part 4 tenancy rights and the lessee subletting a tenancy would not be entitled to rely on the probationary period of six months.
Also the primary repair obligation is imposed on the landlord under the R.T.A. 2004 whereas the primary repair obligation is imposed on the tenant under the lease agreement made between the first named notice party and the second named notice party. Furthermore, counsel for the applicant submits that if a tenancy falls within the ambit of the R.T.A. 2004 then all of the provisions of the Act must be adhered to and it is not possible to contract out of its provisions. However, there is a stark difference between the type of landlord and tenant relationship envisaged in the R.T.A. 2004 and the landlord and tenant relationship which arises between the first named notice party and the second named notice party. In short it is the applicant’s contention that the R.T.A. 2004 cannot accommodate a long lease because it would mean that parties to long leases would have to change radically the content of their lease agreement so as to comply with the provisions of the R.T.A. 2004. I have already touched on the criticism in the applicant’s submission that the respondent was influenced by the proposed amendment to the R.T.A. 2004. I think that the ratio decidendi of the learned Circuit Court judge’s decision was that if the intention was that long leases of owner/occupied apartments should be specifically excluded from the ambit of the Act, then on this her reasoning was clearly stated: “in my view if that was the intention then the legislature should have expressly excluded such dwellings as it did with other dwellings specified in s. 3(2). If the draftsperson omitted such a dwelling as this in error then it is not the function of the court to add to any express statutory provisions to rectify such a mistake. The section is very clear and unambiguous and the function of the court in interpreting a statute is confined to ascertaining the true meaning of each statutory provision.” It was only subsequently that the learned Circuit Court judge added her remarks about Dr. Ryall’s article and she referred to the fact that the counsel for the defendant, without objection as far as I am aware in the Circuit Court from the management company or the P.R.T.B., referred to the Housing (Miscellaneous Provisions) Bill, 2008, which contains the amending provision to s. 3(2) of the R.T.A. 2004 to exclude specifically a dwelling such as this (apartment) from the ambit of that Act and include it as one of the exceptions listed in section 3(2). She added:-
“In my view this would suggest a recognition that such dwellings need to be expressly excluded as they have not been heretofore.”
Indeed, the Circuit Court judge had already referred to the article by Dr. Áine Ryall of UCC published in 2006 in the CPLJ in which Dr. Ryall had specifically noted: that as things stand it appears that the R.T.A. also applies to long leases of dwellings (including those created on “sales” of apartments) although this was plainly not the intention of the draftsman. An amendment by way of primary legislation is required in order to eliminate any doubt on this important practical point” (2006 11(1) CPLJ 4). (Ryall, Residential Tenancies Act 2004: Update and Review). I have quoted this extract from the judgment so that the criticism may be understood and taken in the context of no objection to the production and discussion of Dr. Ryall’s Article in the Circuit Court.
This remark about the intention of the drafter was not conceded by counsel for the second named notice party. For completeness and accuracy, I should point out at the actual amendment in the R.T.A. 2004 inserted by s. 100 of the Housing (Miscellaneous Provisions) Act 2009 into section 3 of the R.T.A. 2004 was by s. 100(2):-
“Section 3 of the Act of 2004 is amended –
(a) . . .
(b) by inserting the following subsection:
“(3) Notwithstanding the definition of “ tenancy” in section 5(1), in this section a reference to a tenancy does not include a tenancy the term of which is more than 35 years.”
I would regard the amending provision to s. 3(2) of the 2004 Act to specifically exclude a dwelling such as this from the ambit of that Act and to include it as one of the exceptions listed in section 3(2) as being similar in effect to the subsection inserted by s. 100(2)(b) by inserting the following subsection into section 3 of the R.T.A. 2004:-
“Notwithstanding the definition of ‘tenancy’ in section 13(1), in this section a reference to a tenancy the term of which is more than 35 years.”
In aid of this criticism counsel for the applicant referred to Cronin (Inspector of Taxes) v. Cork and County Property Company Limited [1986] I.R. 559 at p. 572 in which Griffin J. sitting in the Supreme Court with Henchy and McCarthy JJ. held that Finlay P. in the High Court had been correct in answering the Case Stated and reversing the finding of the Circuit Court that the ordinary principles of commercial accounting demand that the profits of an accounting period consisted of the difference between the receipts of the accounting period and the expenditure laid out to earn those receipts. These principles were applicable to calculate the profit of a trade for tax purposes subject to the express prohibitions contained in the relevant statutes. Secondly, Finlay P. held that the evaluation method laid down in s. 18 of the Finance (Miscellaneous Provisions) Act 1968, as amended only applied to circumstances specified in the section. Those circumstances did not arise in relation to the dealings of the taxpayer, and accordingly, the ordinary principles of commercial accounting applied. On appeal by the respondent company it was held by the Supreme Court in dismissing the appeal
1. that the profit of a trade or business for tax purposes are those calculated by means of ordinary method of commercial accounting as modified by legislation; and
2. that where stock is bought and sold within an accounting period there is no question of valuing the stock within the period. In order to arrive at a true assessment of the profits gained by the trading in land it is therefore not necessary to have regard to the method of valuation provided for by s. 18. There is an ultimate paragraph of Griffin J.’s decision which has the per curiam statement which counsel draws to the attention of this Court:-
“With regard to the submission of counsel for the company that the amendment of s. 18 by s. 29 of the Finance Act 1981 was an implied acceptance by the Oireachtas of the construction of s. 18 for which they contended, the Court cannot in my view construe a statute in the light of amendments that may thereafter have been made to it. An amendment to a statute can, at best, only be neutral – it may have been made for any one of a variety of reasons. It is however for the courts to say what the true construction of a statute is, and that construction cannot be influenced by what the Oireachtas may subsequently have believed it to be.”
Both Henchy J. and McCarthy J. agreed with the judgment of Griffin J.
Counsel for the applicant submits that the respondent was influenced by the proposed amendment to the 2004 R.T.A. in coming to her decision where it is stated by the respondent at p. 4 of the judgment as follows:-
“It is unfortunate that such steps were not taken although counsel for the defendant has referred to the Housing (Miscellaneous Provisions) Bill 2008 which contains an amending provision to s. 3(2) of the 2004 Act to specifically exclude a dwelling such as this from the ambit of the Act and include it as one of the exceptions listed in s. 3(2). In my view this would suggest a recognition that such dwellings need to be expressly excluded as they have not been heretofore.”
Counsel for the applicant ingeniously links this submission in respect of the suggestion that the learned Circuit Court judge was influenced by the subsequent amending legislation into allowing the subsequent amending legislation to affect her decision on the interpretation of the provision. I think that the crucial words in her decision is that previous trenchant finding: “if it was never the intention of the legislature that long leases of owner/occupied apartments be included in the Act, then in my view if that was the intention then the legislature should have expressly excluded such dwellings as it did with other dwellings specified in s. 3(2). If the draftsperson omitted such a dwelling as this in error, then it is not the function of the court to add to any express statutory provisions to rectify such a mistake”. This is the kernel and ratio decidendi of her decision. My understanding is that both the article by Dr. Áine Ryall of UCC in the CPLJ 2006 had been opened to her as well as the Housing (Miscellaneous Provisions) Bill 2008, which contained in draft an amending provision to s. 3(2) of the 2004 Act specifically excluding a dwelling such as the apartment in this case from the ambit of the R.T.A. 2004 and include it as one of the exceptions listed in s. 3. I think that she mentioned this for completeness in dealing with counsel’s argument, and this was understandable in the light of the fact that apparently no objection was taken to the introduction of Dr. Ryall’s article or of the amending provisions in the Housing (Miscellaneous Provisions) Bill 2008. She has subsequently reiterated her view that it is clear from s. 3(1) of the 2004 Act that all dwellings are included by the provisions of the R.T.A. 2004 save those expressly excluded as set out and specified in s. 3(2), that this is a dwelling to which the Act applies and the Court is precluded from dealing with the dispute. Since the Bill was altered before enactment in s. 100 of the Housing (Miscellaneous Provisions) Act as set out above, it would seem that after 15th July, 2009 the lease of the second named notice party would be excluded from the ambit of section 3(1) of the R.T.A. 2004.
Submissions on behalf of the second named notice party
The second named notice party is the occupier of an apartment dwelling held under lease from the first named notice party, the S & L Management Company Limited, for a term of 500 years at an initial rent of €0.25 per annum. It was submitted by the second named notice party that the court has no jurisdiction in this matter by virtue of the then subsisting provisions in s. 3 of the R.T.A. 2004. This assertion was disputed by both the applicant, the P.R.T.B. and the first named notice party. Counsel on behalf of the second named notice party submitted that the relationship between the first and second named notice parties was that of landlord and tenant as defined by s. 3 of Deasy’s Act 1860:-
“The relation of landlord and tenant shall be deemed to be founded on the express or implied contract of the parties, and not upon tenure or service, and the reversion shall not be necessary to such relation, which shall be deemed to subsist in all cases in which there shall be an agreement by one party to hold land from or under another in consideration of any rent.”
The second named notice party relied on the provisions of s. 3, s. 75 and s. 182 of the R.T.A. 2004 as meaning that the Act applied to his tenancy, that the dispute being in respect of alleged arrears of service charges was capable of being referred to the P.R.T.B. and that the court had no jurisdiction in the matter.
The applicant’s complaint is that the decision of the respondent was wrong in law in that it would produce an absurd result and was made without full consideration of the submissions of the applicant. The second named notice party submits that the respondent was correct in law in reaching the impugned decision. Furthermore his counsel submits that s. 5 of the Interpretation Act 2005 must be construed in a manner consistent with the Constitution and in particular Article 15.2 therefore and cannot be used as a device to enable the court to legislate.
Submission of the second named notice party in respect of the correct approach to interpretation of the R.T.A. 2004
Counsel submits that it is for the court and the court alone to interpret legislation. It was held by Barr J. in Shannon Fisheries Board v. An Bord Pleanála [1994] 3 I.R. 449 at p. 456 that:-
“Statutory interpretation is solely a matter for the court and no other body has the authority to usurp the power of the court in performing that function …. In the present case, the meaning of the provision is not free from doubt and, therefore, it is a matter for the court to interpret the regulation.”
It follows therefore that the views of the P.R.T.B. itself are not relevant in interpreting the legislation, notwithstanding that it was set up by the legislation and empowered to apply the legislation. In fact, in the course of the hearing, it was conceded that the tenant did have entitlement to apply to the P.R.T.B. although the Board had sent considerable correspondence refuting the suggestion that the tenant was entitled to apply to the Board.
Counsel’s second proposition was that legislation must be interpreted by the words in which the Oireachtas expressed itself. Again, it was stated by Barr J. in P.J. v. J.J. [1992] ILRM 27 that:-
“A court is entitled to interpret legislation so as to resolve any ambiguity or obvious error therein. However, where the statute is clear in its terms, the court has no power to extend its provisions to make good what is perceived to be a significant omission. If the court took that course it would entail going beyond statutory interpretation and into the realm of law making, a function which under the Constitution is reserved to the Oireachtas. Occasionally circumstances arise where the court is powerless to avoid injustice.” ([1992] ILRM 27 and [1993] 1 I.R. 150 at pp. 154/5)
In the important case of McGrath v. McDermott [1988] I.R. 258, Finlay C.J. in an appeal from the High Court in respect of a case in which the series of transactions was avowedly a tax avoidance scheme and had no other purpose but the steps taken were real as distinct from sham transactions, Finlay C.J. held at p. 276:-
“The function of the courts in interpreting a statute of the Oireachtas is, however, strictly confined to ascertaining the true meaning of each statutory provision, resorting in cases of doubt or ambiguity to a consideration of the purpose and intention of the legislature to be inferred from other provisions of the statute involved, or even of other statutes expressed to be construed with it. The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the courts appear desirable.”
Further down on p. 276 Finlay C.J. continued:-
“Having regard to the finding in the case stated, that these transactions were not a sham, the real nature, on the facts by which I am bound, of this scheme was that the shares were purchased and the purchaser became the real owner thereof; that shares were sold and the vendor genuinely disposed thereof and that an option to purchase shares really existed in a legal person legally deemed to be connected with the person disposing of them.
In those circumstances, for this court to avoid the application of the provisions of the Act of 1975 to these transactions could only constitute the invasion by the judiciary of the powers and functions of the legislature, in plain breach of the constitutional separation of powers.”
At p. 279 in the case McCarthy J. stated:
“The first canon of construction of statutes is that words are to be given their ordinary meaning; . . .. Such a result may well appear as unfortunate as it is unintended, but if it follows from legislation which is reviewed in every Financial Bill, it is not for this or any other court to attempt to rewrite part or whole of the section. The Oireachtas is equipped to devise fair and effective taxation programmes in which discipline this Court has no expertise. The taxpayer has relied upon the constitutional prohibition of legislation by any legislative body other than the Oireachtas; I do not think it necessary to consider the full implications of this part of the argument; I am content to hold that upon the application of the ordinary canons of construction and statutory interpretation, the argument for the Revenue would involve this Court in either rewriting or adding to the actual wording of the subsection; this the Court cannot do.”
Counsel adopts this reasoning and in particular the saying of Finlay C.J. that: “the courts have not got a function to add to or to delete from express statutory provisions so as to achieve objectives which to the courts appear desirable.” Counsel makes this a main plank in his argument and submits that in this case s. 3(1) of the R.T.A. 2004 is clear as to the wide ambit of application of the Act. The Act is expressed to apply to every dwelling the subject of a tenancy. A number of exceptions are listed at s. 3(2). It is very clear that the second named notice party’s dwelling is the subject of a lease and is not within any of the exceptions listed and accordingly is within the scope of application of s. 3 of the R.T.A. 2004 which applies to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act.) The provisions dealing with the exceptions will be exempted from the inclusive ambit of the Act are carefully set out and described in sub-section 2(a), (b), (c), (d), (e), (f), (g), (h) and (i), none of which descriptions of listed and described dwellings includes the apartment of the second named notice party. Section 3 is clearly and precisely expressed. For example section 3(2)(d) involves a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978, the fee simple in respect of it. Counsel submits that this is a clear recognition by the Oireachtas that some dwellings subject to long leases are captured by s. 3(1). The lease must be for longer than 50 years in order to allow the lessee to acquire the fee simple under the 1978 Act. Counsel also makes the point that the maxim “expressio unius est exclusio alterius” is relevant and in point in this situation as by listing exceptions to the inclusive net of the Act, it is clearly implied that any dwelling, subject to a lease, which is not explicitly excluded then is included, provided it is within the wide ambit of s. 3(1).
The applicant submitted originally that because the tenancy was not registered the P.R.T.B. had no jurisdiction to deal with a dispute. This is true in a case of a reference by a landlord, which is easily remedied by the landlord registering the tenancy but it is not correct in the case of a reference by a tenant. It had been suggested by the applicant P.R.T.B. that the non-registration of a tenancy removes it from the jurisdiction of the P.R.T.B. and this operates to confer a jurisdiction on the court. Counsel for the second named notice party maintains that this is incorrect and would produce an absurdity if true. For if a landlord of an unregistered tenancy, and therefore in breach of his obligations under the R.T.A. 2004, is involved in a dispute he would have the option of registering the tenancy and proceeding through the P.R.T.B. or alternatively proceeding through the courts. On the other hand, a landlord of a registered tenancy who is legally compliant would have no choice but to proceed through the P.R.T.B. However, my understanding is that the applicant Board has now conceded that the tenant has a right to make application to the Board.
Long Leases and the R.T.A. 2004
Counsel for the applicant submitted that s. 3(2) excludes certain dwellings from the remit of the R.T.A. 2004 and that the list in s. 3(2) is exhaustive and cannot be supplemented except by legislation, unless by inference from the entirety o f the enactment. It is accepted by the second named notice party that this is correct. The nine categories of excluded dwelling are specified with considerable precision. Neither the applicant P.R.T.B. or the Management Company submitted that the dwelling in this case belongs to any of the categories listed. Counsel for the second named notice party submits that the only way in which the dwelling in this case can be removed from the remit and ambit of the R.T.A. 2004 is by an explicit insertion of a formula of words in the s. 3(2) of the Act given that the list cannot be supplemented.
Counsel for Mr. Mallon then submitted that to insert into or to imply a further exception into s. 3(2) amounted to legislation. Furthermore any exception must be specified with a degree of precision similar to the nine existing exceptions. He submits that it cannot be for the courts to hold in case after case whether or not a dwelling can be the subject of an implied exception until the point is reached when it can be said with any certainty that a dwelling is or is not within the remit of the R.T.A. 2004. He emphasises that the quotation of Finlay C.J. from McGrath v. McDermott [1988] I.R. 258 at p. 276 above:-
“The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the court appear desirable. In rare and limited circumstances words or phrases may be implied into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objective. What it is urged upon the Court by the Revenue in this case is no more and no less than the implication into the provisions of either s. 12 or s. 33 of the 1975 Act of a new sub-clause or subsection providing that a condition precedent to the computing of an allowable loss pursuant to the provisions of s. 33, subs. 5 is the proof by the taxpayer of an actual loss, presumably at least as extensive with the artificial loss to be computed in accordance with the subsection. For this court to avoid the application of the Act of 1975 to these transactions could only constitute the invasion by the judiciary of the powers and functions of the legislature, in plain breach of the constitutional separation of powers.”
He then further submitted that the decision of Denham J. in Howard v. Commissioner of Public Works [1994] I.R. 101 at p. 162, sets out the approach to be adopted in construing legislation:-
“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words. There is well established case law on this aspect of statutory construction.
Thus in In Re MacManaway [1951] AC 161 at p. 169, Lord Radcliffe, in dealing with a reference for advice as to a question as to the meaning of certain words which were contained in the House of Commons (Clergy Disqualification) Act 1801 said:-
‘The meaning which these words ought to be understood to bear is not to be ascertained by any process akin to speculation. The primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act use the words in dispute.’
In Davies Jenkins & Co. Limited v. Davies [1968] AC 1097 at p. 1120, Lord Morris of Borth-y-Gest stated:-
‘I understand that it is accepted that when Parliament enacted s. 18 of the Finance Act, 1954, it must have proceeded on the basis that it was not necessary for the purposes of s. 20 of the Finance Act, 1953, that the recipient company should be trading at the time of the receipt of a subvention payment. This, in my view, neither relieves the Courts from giving free and untrammelled consideration to the interpretation of s. 20 nor does it furnish material for their guidance in so giving it. It is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.’
In R. v. Wimbledon Justices ex parte Derwent [1953] 1 Q.B. 380, Lord Goddard C.J. stated at p. 384:-
‘We are not concerned with that because, although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there, and, if a statute has created a specific offence, it is not for this Court to find other offences which do not appear in the statute.’
In Cox v. Hakes [1890] 15 AC 506, Lord Herschell stated at p. 528:-
‘It is not easy to exaggerate the magnitude of this change; nevertheless it must be admitted that if language of the legislature, interpreted according to the recognised canons of construction, involve this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature.’
In Craies on Statute Law (7th Ed.) at p. 67 it is stated:-
‘Even though a court is satisfied that the legislature did not contemplate the consequences of an enactment, a court is bound to give effect to its clear language.’
Halsbury’s Laws of England (4th Ed.) (Vol. 44) states at paras. 863 and 864 respectively:-
‘Primary meaning to be followed. If there is nothing to modify, alter or qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning.
Speculation as to Parliament’s intention is not permissible. If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which is thought the legislature must have intended.’
The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute, then the court should not speculate but rather construe the Act as enacted.
Applying the rules of the interpretation of statutes, in accordance with the fundamental concepts of the Constitution, it would be improper to give a strained construction to the Act of 1963 (Local Government (Planning and Development) Act 1963). Dealing with the fundamental concept, the balancing of rights and powers under the Constitution, the primary and literal approach to the construction of the statute is appropriate.”
Counsel added the submission that there was no intention on the part of the Oireachtas to exclude all long leases. The Oireachtas considered one category of long lease, being that described above in s. 3(2)(d) and excluded it and by implication must have intended to include other categories. It must be assumed that the Oireachtas deliberated carefully upon the legislation and enacted it after due consideration. It may have departed, for example, from the terms of the Report of the Commission of the Private Rented Sector for some or any reason which it deemed sufficient. A Report or White Paper is no more than a recommendation or suggestion to the Oireachtas and is not of itself law. It is of relevance only in resolving ambiguity in a provision if such an ambiguity exists. In the present situation the wording of s. 3 of the R.T.A 2004, is simple and clear, and is not obscure or ambiguous.
Consideration of R.T.A. 2004 as a whole.
With regard to consideration of the R.T.A 2004 as a whole, counsel submitted that the submissions of the applicant, at their highest, went no further than to show that the inclusion of dwellings of the kind occupied by the second named notice party in these proceedings was an oversight on the part of the Oireachtas, being a failure to exempt and exclude such an apartment from the general inclusions. The submissions did not show how another category of dwelling could have been included in s. 3(2) of the Act by implication. In fact, it was conceded that such an extension of s. 3(2) was not possible. This is consistent with the decision of the Supreme Court in the case of The State (Murphy) v. Johnson [1983] I.R. 235, where Griffin J. held that any attempt to substitute “Part V of the Act of 1968” for “Part III of the Act of 1968” would amount to amendment of s. 23 of the 1978 Act rather than interpreting it and this was a function of amending legislation reserved solely to the Oireachtas. This case was one of the many cases spawned by the legislation in respect of driving with an unlawful concentration of alcohol in the body contrary to s. 49 of the Road Traffic Act 1961. At the trial of the prosecutor in the District Court, he was convicted by the respondent District Court Judge or a complaint that the prosecutor had driven a vehicle in a public place at a time when he had unlawful concentration of alcohol in his body, contrary to s. 49 of the Road Traffic Act 1961. At the trial, the concentration of alcohol in the prosecutor’s body at the relevant time was proved by, inter alia, a certificate issued by the Medical Bureau of Road Safety pursuant to s. 22 of the Road Traffic (Amendment) Act of 1978. Section 23 of that Act provided that such certificate shall, unless the contrary is shown, be sufficient evidence of compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by Part III of the Act of 1978 “or under Part III of the Act of 1968”. The reference to Part III of the R.T.A. 1968, appears to be a mistake since that Part III was concerned with driving licences and not with driving offences, while a reference to Part V of the Act of 1968 would have been more suitable. The prosecutor relied upon that mistake when he applied in the High Court and obtained a conditional order of certiorari quashing his conviction, unless cause were shown to the contrary. The High Court allowed the cause shown and discharged the conditional order. On appeal by the prosecutor, it was held by the Supreme Court (O’Higgins C.J., Griffin and Parke JJ.), in disallowing the appeal, (1) that the reference in s. 23 of the Act of 1978 to Part III of the Act of 1968 was an obvious error which the court would not attempt to remedy by treating the erroneous reference as being a reference to Part V of the Act of 1968, since to adopt that course would be to amend the enactment and to usurp a function of the legislature. (2) that proof of compliance with the provisions of Part V of the Act of 1968 was not necessary for a successful prosecution under s. 49 of the Act of 1961, while proof of compliance with the provisions of Part III of the Act of 1978 had been necessary at the trial of the prosecutor and had been supplied by the certificate of the Bureau. O’Higgins C.J. at p. 239 said:-
“On the hearing of this appeal counsel on behalf of the respondent has urged this Court to hold that, having regard to the obvious nature of the error which appears in s. 23, subs (1) and (2) of the Act of 1978, it is competent for a court or judge to read the reference to Part III of the Act of 1968 as a reference to Part V of that Act. I do not accept that submission. Whatever the reason for the apparent error may be, the reference in s. 23 subs. (1) and (2) of the Act of 1978 is to ‘Part III of the Act of 1968’. That reference is clear and unambiguous. To read it as being something other than it is would be, in effect, to amend the subsections. That is not within the competence of the courts and cannot be done.”
At p. 240, Griffin J. said that he agreed with the judgment of the Chief Justice, and enlarged on this by stating:-
“It is for the Oireachtas alone to make laws; the function of the courts is to interpret and construe them. Under the common law, broad rules of construction of statute were laid down. These still apply, subject to the reservation that we now operate under a written constitution. Under these rules, the courts should not proceed on assumption that the legislature has made a mistake, as there is “a strong presumption” that the legislature does not make mistakes. However, mistakes do occasionally occur in printing or in drafting and, if it is possible, the words of a statute must be construed so as to give a sensible meaning to them ut res magis valeat quam pereat. In the last century it was held to be possible, in certain circumstances, to treat obvious misprints as if they had been rectified.”
This case emphasises the caution exercised by the court not to usurp the sole and exclusive power of making laws for the State which is vested in the Oireachtas.
Counsel then referred to s. 5 of the Interpretation Act 2005, which has been set out above and referred to the construing of a provision of an Act which is obscure or ambiguous or on a literal interpretation would be absurd or would fail to reflect the plain intention of the Oireachtas. He submitted that the Oireachtas has chosen in this instance to proceed by way of including all dwellings which are the subject of a tenancy and to exclude dwellings, which meet precise criteria in s. 3(2) of the R.T.A. 2004. Counsel submits that the presumption is of inclusion rather than exclusion. It is clear that the scheme of the Act was to avoid devising criteria for the categories of leased dwellings to be included in the scheme. This is not absurd, he submits, as it makes the law certain and avoids the difficulty of having leases devised which would thwart the overall objectives of the scheme. He submits that it is for the Oireachtas alone to add to or vary the categories of dwelling which are to be included in the scheme and which are to be specifically put in a category which is to be defined for exclusion from the wide embrace of the scheme. The drafting of s. 3 in subparas. (a) to (i) shows readiness to set out the description of the exemptions with a degree of specific and precise categorisation. It is the province of the Oireachtas alone to deal with matters involving policy and to add to or vary the categories of dwelling to be specified and defined for exclusion from the scheme. Moreover, he submits that this is not be done on a case by case basis by the courts, because this would be for the courts to trespass on the demesne of the legislature and, particularly where there is a lacuna in the Act in relation to long leases and the characteristics and features of such leases which would qualify such long leases to be included in a further category (j) or a subsection 3(3) of exclusion from the ambit of s. 3(1). There is no definition of a long lease included in the Act and there is no guidance given in the Act as to the terms including the length of such a lease or the types of terms and conditions to be included in such a lease as would qualify it for exclusion from the ambit of section 3(1).
Counsel for the second named notice party makes the point that in fact many of the provisions which counsel for the applicant referred to as being inappropriate in respect of the provisions of the R.T.A. 2004, in effect can be adapted to fit in with the requirements of the R.T.A. 2004. For example, the repair obligations imposed by the 2004 Act on the landlord can be dealt with by the members of the Management Company agreeing in general meeting to carry out necessary repairs on units leased by them or to indemnify the Management Company for the costs of repairs carried out by the Management Company in respect of a unit leased by a member. It is also the case that where a lease imposes repair obligations on a tenant, these will be applied if it is to the advantage of the tenant. With regard to rent review, s. 19 of the R.T.A. 2004 merely provides that the rent cannot be greater than the market rent. There is no prohibition on charging rent which is less than the market rent so the fact that the rent is €0.25 per annum is irrelevant. In the event of a review, the appropriate rent may be determined by reference to the criteria laid down in the Act. Any dispute about the appropriate level of rent may have been referred to the applicant under s. 78 of the Act. The applicant would have been able to take into account the length of the lease and the premium paid upon its commencement in determining an appropriate level of rent. In particular, the applicant would be in a position to ensure that all units in the development were charged the same rent. Since all of the leaseholders paying the rent are all members of the Management Company, it may safely be assumed that an excessive level of rent would not be sought from any or all of the leaseholders.
Section 26 of the R.T.A. 2004 states as follows:-
“Nothing in this Part operates to derogate from any rights the tenant enjoys for the time being (by reason of the tenancy concerned) that are more beneficial for the tenant than those created by this Part.”
Since the existing lease is more beneficial to the second named notice party with regard to security of tenure, his tenancy is not and never becomes a Part 4 tenancy, and the submissions of the applicant in this regard appear to be incorrect. Also, counsel contends that it is not unreasonable for the Management Company to be aware of the names of all persons residing in a dwelling, since there may well be security and safety implications if it is not known who is residing in each dwelling within an apartment block, nor is it absurd for the second named notice party to seek the consent of the Management Company before subleasing his dwelling. This is consistent with the good and orderly management of an apartment complex. This is a requirement of the lease in any case and so it cannot be considered to fly in the face of reason. Section 187 of the R.T.A. 2004 does no more than assist any subtenant of an apartment who may well have a more immediate concern with the management than his own landlord to resolve difficulties he may have such as blocked stairways or noise or pollution or other nuisances. Counsel also contests the submission of the applicant that there should be a limitation of the meaning of s. 3(2) of the Act as this was not necessitated by the examples given on behalf of the applicant and this does not resolve the question as to how a long lease can be enforced with sufficient or any precision from the provisions of the R.T.A. 2004.
Counsel contests the submission made on behalf of the applicant that there should be a limitation on the meaning of s. 3(2) of the Act as this was not necessitated by the examples cited by the applicant and this does not in any way resolve the question as to how a long lease can be inferred with sufficient precision from the wording of the Act. In particular, counsel submits that there is nothing in the R.T.A. 2004 which would enable the question to be resolved as to how a long lease can be inferred with precision as to the length of such a lease and the terms and conditions and covenants involved in such a lease or what characteristics thereof there needs to be for it to be exempted from the ambit of s. 3(1) of the Act.
Counsel for the second named notice party makes two further points. First, the R.T.A. 2004 contains penal provisions with regard to the registration of dwellings as set out in s. 144 of the Act. He submits that accordingly the construction of the provisions of the R.T.A. 2004, which determined which dwellings are within the purview of the Act, must be strictly construed (Mullins v. Harnett [1998] 4 I.R. 246). It is, he submits imperative that the court does not stray into the realm of excluding or including categories of dwellings and in particular, well defined categories of dwellings from the ambit of s. 3 of the Act. Secondly, counsel submits that the structure of s. 3 is based on a rational and sensible approach. In the event of express inclusion, it would be easier to devise leases which would circumvent the categories specified in the Act. Enforcement action is also made easier by the fact that the prosecuting authority does not have to show that a dwelling was within a category defined by the Act. As things stand, once it is established that a dwelling is the subject of a lease, it is a relatively simple matter to decide if it falls within one of the precisely defined exceptions excluding this lease from the ambit of the Act. Counsel further contends that counsel for the applicant was incorrect in stating that there never was an intention to deal with long leases in the bill given that there is express mention in the Act of those leaseholders who are entitled to acquire the fee simple in respect of their dwelling. Finally, counsel points to a lacuna at s. 3(2) in the Act and points particularly to the lack of a further exclusionary provision at (j) or s. 3(3) by which preferably clearly described and defined longer leases would be excluded from the ambit of s. 3(1) of the Act. In the absence of such a further exemption provision or such other exclusion provision as fits the policy of the Act and commends itself to the Oireachtas, there is a void on the basis of the provisions being as they were at the time when the learned Circuit Court Judge gave her decision. Because of the maxim on the lines that if one sets out exceptions then by naming these, it is implicit that any further exclusionary clause, which is omitted, is to be taken as having been deliberately omitted by the Oireachtas. Furthermore, the provisions of such an exclusionary provision making certain long leases exempt from the scope of s. 3(1) are not described, nor are the covenants and features of and length of term thereof defined or set out in the Act either explicitly or implicitly. This is especially the case when the features of such an exempting provision are neither explicit nor implicit nor to be deduced from the entire of the Act particularly as to the terms, length and features of any probable necessarily contemplated amending exclusionary clause.
In summary, the conclusion is that the decision of the respondent was correct and it is for the legislature and not for the courts to fill the gap if the Oireachtas so chooses. The courts should not be seduced by siren voices into trespassing on the legislative preserves of the Oireachtas. This is especially the case of the features of such an excluding provision and exempting legislation are at present in a void which it is for the legislature to fill and not for the courts to try to remedy by a process of case by case decision.
I have concluded that the learned Circuit Court Judge was correct in that if the provisions of s. 3(1) were not to apply to long leases of owner occupied apartments then the legislature should have expressly excluded such dwellings with clear descriptions and definitions of such long leases as were being excluded from the ambit of s. 3(1), just as was done to so exclude other dwellings as specified in s. 3(2)(a) – (i) inclusive. I agree that if the person drafting the Act omitted such a dwelling as this in error then it is not the function of the court to concoct an appropriate exclusionary provision at (j) or s. 3(3) to rectify such a mistake. The section is clear and unambiguous and the function of the court in interpreting a statute is confined to ascertaining the true meaning of each statutory provision and the courts have no license to trespass on the policy making and legislative role of the Oireachtas in devising amending legislation. It is, indeed, clear from s. 3(1) of the 2004 Act that all dwellings are included by s. 3 of that Act save those expressly excluded as set out and specified in s. 3(2) so that this apartment is a dwelling to which the Act applies and the court is precluded from dealing with the dispute in respect of the service charges. Accordingly, the court must refuse the reliefs sought by the applicant. I will hear counsel as to the appropriate orders to be made on foot of these findings.
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H578
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Duniyva -v- Residential Tenancies Board [2017] IEHC 578 (12 October 2017)
URL: http://www.bailii.org/ie/cases/IEHC/2017/H578.html
Cite as: [2017] IEHC 578
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Judgment
Title:
Duniyva -v- Residential Tenancies Board
Neutral Citation:
[2017] IEHC 578
High Court Record Number:
2017 152 MCA
Date of Delivery:
12/10/2017
Court:
High Court
Judgment by:
Barrett J.
Status:
Approved
[2017] IEHC 578
THE HIGH COURT
2017 No. 152 MCA
BETWEEN:
MARY DUNIYVA
align=”right”>APPELLANT
– AND –
RESIDENTIAL TENANCIES BOARD
RESPONDENT
JUDGMENT of Mr Justice Max Barrett delivered on 12th October, 2017.
I. Background
1. On 12th April, 2017, the Residential Tenancies Board issued a determination order to the effect that, inter alia, a notice of termination served on Ms Duniyva by her landlords on 3rd November, 2016, is valid. On 10th May, 2017, Ms Duniyva notified the Residential Tenancies Board that she intended to appeal the determination of 12th April to the High Court. Such an appeal may be brought under s.123(3) of the Residential Tenancies Act 2004 which provides that “Any of the parties [to proceedings before a Tenancy Tribunal] may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.”
2. Critically, an appeal under s.123(3) is “on a point of law”. As a result, the ambit of such an appeal is considerably constrained. The level of constraint presenting was detailed by the High Court in its relatively recent decision in Marwaha v. Residential Tenancies Board [2016] IEHC 308, para.13 (another s.123(3) appeal), and need not be recited again here. The court would, however, note that it is its unfailing experience with all persons who bring s.123 appeals that what they seek is a re-hearing of their initial application; indeed Ms Duniyva, like all such appellants with whom this Court has treated, has sought to argue her appeal in part as though it is a re-hearing. If such a re-hearing is what appellants seek, and what courts, to a greater or lesser extent, find themselves called upon to hear, even if it is not what they substantively do, then it might perhaps be contended that that is what should be allowed at law. However, that contention and its resolution do not fall to this Court to raise or reach.
3. In her grounding affidavit, Ms Duniyva mentions four grounds of appeal, viz. that (1) the Tenancy Tribunal mis-applied s.34(4) of the Act of 2004, (2) the Tenancy Tribunal failed to show regard for the right to peaceful and exclusive occupation of ‘her’ rented dwelling, as recognised by s.12(1)(a) of the Act of 2004, (3) the Tenancy Tribunal’s hearing and determination “were one-sided and biased in favour of the landlord, failing to apply the principles of natural and constitutional justice”; and (4) the Tenancy Tribunal breached fair procedures by not allowing Ms Duniyva properly to cross-examine witnesses. In her oral submissions, Ms Duniyva also suggested that her time for appeal had been curtailed, and that she has a constitutional right to accommodation/housing which somehow operates to her advantage. The issue concerning the right of appeal is an irrelevance as Ms Duniyva has proceeded in a timely manner with her appeal. The court turns to examine each of the other points below.
II. Section 34(4) of the Act of 2004
4. Section 33 of the Act of 2004 provides that “A Part 4 tenancy [and Ms Duniyva’s tenancy is such] may not be terminated by the landlord save in accordance with section 34.” Section 34(1) provides, inter alia, that “A Part 4 tenancy may be terminated by the landlord–(a) on one or more of the grounds specified in the Table to this section…”. Paragraph 4 of that Table, as amended by the Residential Tenancies (Amendment) Act 2015, s.28(d), (as commenced by the Residential Tenancies (Amendment) Act 2015 (Commencement of Certain Provisions) (No 3) Order 2016 (S.I. No. 216 of 2016)), offers as a ground for termination that: “The landlord requires the dwelling or the property containing the dwelling for his or her own occupation or for occupation by a member of his or her family and the notice of termination (the ‘notice’) contains or is accompanied by a statutory declaration [specifying certain detail]”. Pursuant to s.35(4) of the Act of 2004, inter alia, a grandchild of a landlord is a family member for the purposes of para.4 of the Table to s.34.
5. Ms Duniyva points to the fact that the ground for termination is that the landlord “requires the dwelling…” (emphasis added), and suggests that termination of the tenancy must be essential or important rather than just desirable. The court notes that in the Oxford Online Dictionary, when it comes to: (1) the verb “require”, the principal definition provided is “need for a particular purpose”; and (2) the verb “need”, the principal definition provided is “require (something) because it is essential or very important rather than just desirable”.[1] Having regard to the just-stated definitions, the court considers that the use of the third-person singular form of the verb ‘to require’ in para.4 of the Table to s.34 has the result that a landlord must ‘need’ the dwelling in issue, which has the effect that termination of the tenancy must be essential or very important to him (or her), rather than just desirable. That need has a subjective and an objective dimension, in the sense that a Tenancy Tribunal would need to look to whether a landlord subjectively requires a dwelling (here the statutory declaration, it seems to the court, would typically be determinative) and also to whether that perceived requirement is a bona fide requirement and not (i) a requirement that a landlord purports to exist but which does not in truth exist, or (ii) a requirement that is advanced to achieve an unlawful objective, e.g., the perpetration of unlawful discrimination contrary to the Equal Status Acts.
[1] When it comes to the verb ‘to need’, Ms Duniyva in her submissions placed some emphasis on the meaning attributed by Geoghegan J., in Equality Authority v. Portmarnock Golf Club & ors [2009] IESC 73, to the noun “needs” in s.9(1)(a) of the Equal Status Act 2000. With respect, the court does not see that the meaning afforded by the Supreme Court to a particular noun in a statute that is of no relevance to the within application has any bearing on the meaning to be given by this Court to an unrelated verb (‘to need’) which appears in the principal definition of yet another verb (‘to require’) that is employed in an entirely different statute (the Act of 2004).
6. Here, the landlords want Ms Duniyva’s tenancy of her rented dwelling terminated in order that a grandson of theirs who is in college and desirous of independence from his parents, can live closer to where he studies, and does not have to be taking two long bus-rides to and from college each day, or (worse still) be cycling to or from college on dark mornings, and still darker evenings.
7. The court is not required in the within appeal to determine whether there is in the statutory declaration furnished by the landlords, and/or the broader facts presenting, sufficient to justify the requirements of the Act of 2004, as touched upon above. This being an appeal under s.123(3) of the Act of 2004, the court is concerned solely with points of law. Turning to this aspect of matters, is it the case that the Tenancy Tribunal could not, acting in accordance with law, have concluded that the landlords to Ms Duniyva required the dwelling and were bona fide in seeking to terminate the tenancy on the grounds specified? In this regard, the court notes the averment by the chairperson of the relevant Tenancy Tribunal that “[T]he Tribunal took into account the evidence and materials before it, namely, the Statutory Declaration sworn by the Landlord and the direct evidence of the Landlord’s grandson to the effect that he required the dwelling for his own occupation”. Moreover, in the reasons for its decision, the Tenancy Tribunal stated, inter alia, in its Report, para. 7, that “The Tribunal is satisfied that the dwelling was required for the Landlord’s grandson….The Tribunal is also satisfied that the intention is a bona fide intention and that the Landlord does hold the required intention”. Clearly, no unlawfulness presents in the landlords’ bona fide requirement of the dwelling currently rented by Ms Dunivya. So the Tenancy Tribunal addressed in effect the subjective and objective dimensions of the matter presenting before them and arrived at a perfectly valid finding that was reached in accordance with law. There is no misapplication of s.34(4) of the Act of 2004 in that.
III. Peaceful and Exclusive Occupation
8. Ms Duniyva contends that the Tenancy Tribunal failed to show regard for that right to peaceful and exclusive occupation of her rented dwelling which is the logical corollary of the obligation on landlords, under s.12(1)(a) of the Act of 2004, to allow “the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling”. This aspect of matters did not receive much of an airing at the oral hearing of the within appeal. However, what the court understands Ms Duniyva to contend in this regard is that service by her landlords of the notice of termination interfered with the right aforesaid. With respect, the court does not see how this could be so: there are six grounds on which a landlord may, under s.34, lawfully terminate a Part 4 tenancy. As the landlords in the within matter have been found to have relied properly on one of the six grounds, it simply cannot follow as a matter of logic or law that service of notice of termination on one of those six grounds could or does interfere with Ms Duniyva’s right to peaceful and exclusive occupation of her rented dwelling.
IV. Bias and Breach of Principles of Natural and Constitutional Justice
9. Ms Duniyva contends that the Tenancy Tribunal’s hearing and determination “were one-sided and biased in favour of the landlord, failing to apply the principles of natural and constitutional justice”, and that she was not allowed properly to cross-examine witnesses. In point of fact, over a 2½ hour period, Ms Duniyva was given a full opportunity to present such evidence as she thought appropriate, to cross-examine all of the landlords’ witnesses, including the landlords’ teenage grandson, and to make all appropriate submissions. There is no bias or breach of the principles of natural and constitutional justice presenting. Nor does it follow from the fact that the Tenancy Tribunal reached conclusions adverse to Ms Duniyva that it was possessed of some bias against her or necessarily acting (in point of fact it did not act) in breach of the principles of natural or constitutional justice. Nor the court notes, given that Ms Duniyva has, with respect, a certain tendency to loquacity, is it the case that a tribunal must continue unendingly with a hearing when all that a party is doing is repeating the same points and/or has patently iterated the points which that party has come to the hearing to make. What is required as a matter of administrative law is fair procedure (which need not be perfect procedure), including a fair hearing (which need not be a perfect or endless hearing). Ms Duniyva’s allegations of bias on the part of, and breach of the principles of natural and constitutional justice by, the Tenancy Tribunal, are respectfully rejected by the court.
V. A Constitutional Right to Accommodation/Housing?
10. Neither in her notice of motion nor in her accompanying affidavit does Ms Dunivya make mention of a constitutional right to accommodation/housing as acting to frustrate the operation of the Act of 2004, as amended. This was a point that arose in submission only and with very little amplification as to what in fact was being contended for. All this being so, the court would confine itself to the observations that (i) there is no express constitutional right to universal provision of housing by the State; and (ii) that is not to say that some qualified, un-enumerated (and as yet unrecognised) constitutional right to accommodation/housing might not at some future point be found by a court to exist as a matter of Irish law, perhaps by reference to the insights to be gleaned from the burgeoning case-law of, and elaboration of principle by, the European Court of Human Rights concerning minimum State obligations in the area of housing rights (see, inter alia, Moldovan v. Romania (2007) 44 EHRR 16, Marzari v. Italy (1999) 28 EHRR CD175, Botta v. Italy (1998) 26 EHRR 241, and Guerra v. Italy (1998) 26 EHRR 357). However, it falls to this Court to decide the within case, not to predict the outcome of some possible future case; and when it comes to this case, there is no ‘free-wheeling’ or qualified constitutional right to accommodation/housing that can be deployed by Ms Dunivya or the court, certainly not without its having been pleaded or the subject of substantive argument, in order to upset the lawful finding of a Tenancy Tribunal reached pursuant to a statute that enjoys the presumption of constitutionality.
VI. Conclusion
11. Ms Duniyva, an elderly lady who has suffered recently from ill-health, has the sincere sympathy of the court that she now faces lawful eviction from the dwelling that she rents. In her closing submissions, Ms Duniyva effectively asked the court to ignore the law and its ‘technicalities’ (as she perceives them) and to do justice (as she considers it to lie). But none of us is above the law; and that includes the judge on the bench. The courts may bring equitable precepts to bear upon the problems that present before them; but the courts are bound by law, and rightly so. Ms Duniyva’s landlords require their premises for occupation by a member of their family; and our elected lawmakers, sensible men and women of the world, have determined in the Act of 2004, as amended, that such affords a good basis on which to evict a sitting tenant. It would be gravely presumptuous of an unelected court and profoundly unjust to Ms Duniyva’s landlords, if the court were now to yield to Ms Duniyva’s supplications and deny to those landlords, on a judicial whim, an entitlement that they enjoy under a comprehensive statutory régime devised by our elected lawmakers.
12. For all of the reasons identified above, the court is coerced as a matter of law into respectfully declining all of the reliefs that Ms Duniyva has sought in the within appeal.
H604
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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Teniola -v- Brady & Ors [2014] IEHC 604 (11 December 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H604.html
Cite as: [2014] IEHC 604
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Judgment
Title:
Teniola -v- Brady & Ors
Neutral Citation:
[2014] IEHC 604
High Court Record Number:
2014 206 JR
Date of Delivery:
11/12/2014
Court:
High Court
Judgment by:
Baker J.
Status:
Approved
___________________________________________________________________________
Neutral Citation: [2014] IEHC 604
THE HIGH COURT
JUDICIAL REVIEW
[2014 No. 206 J.R.]
BETWEEN
JASMINE TENIOLA
align=”right”>APPLICANT
AND
FRANK BRADY, PRIVATE RESIDENTIAL TENANCIES BOARD, IRELAND,
AND
THE ATTORNEY GENERAL
RESPONDENTS
AND
COLLETTE CONNOLLY
AND
JACINTA HESLIN
NOTICE PARTIES
JUDGMENT of Ms. Justice Baker delivered on the 11th day of December, 2014
1. The applicant was at all material times the tenant of a residential dwelling at 24 Hampton Green, Navan Road in the City of Dublin and the notice parties were her landlords. The landlords made application for dispute resolution pursuant to s. 78 of the Private Residential Tenancies Act 2004 (“the Act of 2004”) to the Private Residential Tenancies Board (the “Board”) and their complaints were that the applicant was in arrears of rent, and was overholding following the service of a notice of termination arising from such arrears. This judicial review relates to the conduct of the hearing on the 6th March, 2014 before the first respondent, Frank Brady, the adjudicator. The two landlords and the applicant herself attended the hearing, and neither side to the dispute had legal representation at the hearing.
2. The applicant obtained leave to apply for judicial review in the form of an order of certiorari quashing the order of the first respondent made on the 6th March, 2014, and for declaratory relief that certain of the orders made by him, in particular the order refusing to adjourn the adjudication hearing, were ultra vires and reached in breach of fair procedures. The applicant also claims that she was denied the opportunity of presenting her case fully at the adjudication hearing because in particular some documentation which she had gathered for that purpose was in the possession of her solicitor who was unable to attend on that day.
The statutory framework
3. The Act of 2004 was established with the aim inter alia of facilitating the speedy and cost effective resolution of disputes between landlords and tenants of residential dwellings. Denham J. in Canty v Attorney General & Ors [2011] IESC 23 addressed the object of the Act of 2004, and quoted with approval the judgment of McKechnie J. in the High Court delivered ex tempore on 17th December, 2007 as follows:
“the legislature, by virtue of the 2004 Act, established a framework by which disputes between landlords and tenants could be resolved, with the intention of that being done informally, expeditiously and as cheaply as possible. Bodies with particular expertise were set up within this framework to discharge the functions assigned to them.”
4. The Board established by the legislation has an almost exclusive jurisdiction to determine disputes between landlords and tenants of residential tenancies. The applicant held the subject premises under a fixed term letting described in the letting agreement as a “minimum of 12 months” from the 1st March, 2013, at a monthly rent. The circumstances in which a tenancy governed by the legislation may be terminated are set out in Chapter 3 of the Act and include inter alia the relevant ground which is alleged to have arisen in this case, namely where the landlord serves a notice of termination grounded on an alleged failure of the tenant to pay the agreed rent.
5. Part 6 of the Act created a machinery of dispute resolution in respect of “disagreements”, defined in s. 75(3) as including any issue between the parties with regard to the compliance by either party with his or her obligations as landlord or tenant under the tenancy, and any matter with regard to the legal relations between the parties, including whether the tenancy has been validly terminated.
6. The landlords sought to avail of the adjudication process provided under the Act and Mr Brady was appointed adjudicator pursuant to s. 164(2). Adjudication is the first part of the dispute resolution process, and is intended to be a speedy and cost effective means of resolution, the second stage involving a more formal type of hearing before the Tribunal itself.
Failure to exhaust remedies
7. Counsel for the respondent makes a preliminary objection that the applicant has failed to exhaust all remedies available to her and that in the circumstances judicial review does not lie. The applicant argues, correctly in my view, that there is no absolute rule of law that mandates an aggrieved party in all cases to appeal in lieu of making application for judicial review. The case law is well established. As O’Higgins C.J. observed in State (Abbenglen Properties Ltd) v. Dublin Corporation [1984] I.R. 381 the court may grant judicial review even in circumstances when the appellate mechanism has not been exhausted if that is necessary in the interests of justice. The central proposition was stated by him as follows:-
“The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alterative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief.”
8. The test so stated by the Supreme Court is whether the appeal is adequate to deal with the complaint. Hedigan J. in O’Connor v. PRTB [2008] IEHC 205 addressed this question with regard to the specific statutory appeals mechanism provided under the Act of 2004, and held that the entirety of the case made by the applicant could have been made by way of an appeal under the statutory scheme, what he described as “a procedure specifically designed for that purpose for the legislature and, in this particular case, capable of dealing with each and every one of his complaints”.
9. The Supreme Court recently considered the appropriateness of judicial review in the case of EMI Records (Ireland Ltd) and Others v. Data Protection Commissioner and Another [2014] 1 I.L.R.M. 225 (“EMI”). The Court referred to the decision of Hedigan J in O’Connor v. PTRB and also to a judgment of Hogan J. in Koczan v. Financial Services Ombudsman [2010] I.E.H.C. 407 where Hogan J. identified a spectrum of cases in respect of which judicial review might be more or less appropriate. Judicial review was identified as appropriate where the complaint relates to the integrity or basic fairness of a decision making process, or where arguments relating to what he described as a “total lack of subject matter jurisdiction” arise. Hogan J. however stressed that where an administrative scheme provided a statutory appeal mechanism judicial review must be regarded as “the exception rather than the rule”, and when the legislature created a right of statutory appeal from an administrative decision that the Oireachtas must have intended :-
“That the statutory appeal would form the vehicle whereby the entirety of an appellant’s arguments could be ventilated in such an appeal without any need to commence a further set of proceedings, at least to the extent that it was procedurally possible to do so”.
10. The Supreme Court described the “default position” as being that a party should pursue a statutory appeal rather than initiate judicial review, and said that the reason for this is as pointed out by Hogan J in Koczan v. Financial Services Ombudsman:-
“that it must be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily, those dissatisfied with an initial decision might be entitled to have the initial decision questioned.”
11. The first question I must ask is whether the circumstances of this case fall within the category of exceptional cases, the language used by the Supreme Court in EMI, where judicial review is available to a party in lieu of engaging with the statutory appeal mechanism. From EMI it is clear that the set of circumstances is not necessarily closed, but the rationale or defining criteria could be said to be whether the appeal will permit an aggrieved person to adequately ventilate a complaint, or whether, as said by Hogan J. in Koczan v Financial Services Ombudsman, the issues sought to be raised by judicial review cannot properly be raised by way of appeal at all. With that in mind, and having regard to what must be seen as a high bar, I examine whether the complaints made by the applicant are more properly characterised as coming within the exceptional category of cases where judicial review lies.
12. The complaints of Ms Teniola with regard to the process of the adjudication are threefold: That she was refused an adjournment to ensure the availability of her solicitor; that she was denied the opportunity to submit factual matters regarding the condition of the premises, because as she put it she could not “meaningfully engage” with the question without her documentation, or probably without her solicitor; and that the adjudicator was biased in his dealing with the matter. Counsel for the applicant also argues that to deny Ms Teniola judicial review would be to deny her the two hearings the legislation envisages, and that accordingly appeal does not offer her a sufficient remedy, and furthermore that there is what was described as a “grave risk” that unfairness contaminating the first hearing will also tarnish the second. I will first examine the latter argument as it goes to the nature of the statutory appeal mechanism established by the Act of 2004, before considering the specific complaints made as to the conduct of the hearing and whether a statutory appeal would offer Ms Teniola an adequate remedy.
The appellate structure
13. Section 100 of the Act provides that one or more of the parties to a dispute may appeal the determination of an adjudicator to the Tribunal, with an appeal to the High Court on a point of law. Briefly the procedure is as follows: the adjudicator prepares a report which is served by the Board on each of the parties to the dispute, and the Board is directed by the legislation to include a statement in terms of s. 99(4) which I will quote in full:
“That statement is one to the effect that the Board will follow the procedures under section 121 (which concerns the making of determination orders) in relation to the determination of the adjudicator unless, in the case of a determination under section 97 (4) (a) an appeal is made under, and in accordance with section 100 against the determination and that appeal is not subsequently abandoned”.
14. Section 21 provides that the report of an adjudicator shall be the subject of a written record, referred to in the Act as “a determination order” which shall contain inter alia the terms of the determination, the nature of the evidence, disputed and agreed facts, a summary of the reasons for the determination, and of particular importance in this case, relevant particulars in relation to the conduct of the adjudication, including particulars in relation to the number and duration of the hearings heard by the adjudicator, the persons who attended any such hearing and any documents submitted to the adjudicator.
15. The report becomes the subject of a determination or decision by the Board unless the decision or determination of the adjudicator is appealed. The statutory scheme gives a peculiar degree of control to the parties to the process, in that either or both of them may by lodging an appeal under s. 100 of the Act against the determination of the adjudicator, prevent the adjudicator’s decision having legal effect, and the report of the adjudicator does not crystallise into a decision if an appeal is lodged. This appellate structure is somewhat different from that operating in the civil courts, and it is not so much that an appeal acts as a stay, rather the appeal prevents the adjudicator’s report having legal effect. This it seems to me offers considerable protection to a person dissatisfied with a decision of the adjudicator, and there is no requirement to seek a stay on the decision, nor could it be said that the existence of an unfavourable determination creates any form of imperative towards the decision at first instance.
16. On the lodging of an appeal the Tribunal itself hears the dispute and is entitled under s. 104(2) to hold one or more hearings for that purpose. Pursuant to s. 102(6) each of the parties shall be entitled to be heard at the hearing, to be represented and to present evidence and witnesses. The Tribunal may require evidence to be given under oath, and witnesses may be cross examined. The hearing is in public and has many of the indices of a hearing before a court of law.
17. Should the Tribunal enter upon a hearing of a dispute by way of a reference under s. 94 it engages upon what might be described as a de novo hearing. I consider this to be clear from the provisions of s. 104(7) which provide that the Tribunal may have regard to the report of the adjudicator, and the absence of a statutory mandate means that it may disregard it entirely. Thus in no sense could it be said that an appeal to the Tribunal is, or takes the form of, a review or a limited appeal on a point of law or fact, and an appeal is a full rehearing. The Tribunal is not bound by the contents of the report of the adjudicator, and I further note that the Tribunal hearing an appeal would have had the full report and not merely the decision, or the determination, and it will be aware for example whether the parties were legally represented, whether certain matters were omitted from the hearing that might later have come to seem relevant, that documentation was not produced, and as a result the Tribunal has available to it the means of entering upon a hearing that can deal with any complaints as to the conduct of the adjudication hearing.
18. Accordingly I consider that the appellate structure offers a robust and transparent means by which a person dissatisfied with a determination by an adjudicator may seek redress, and that the appeal can be utilised to deal with many types of complaints, including those more traditionally dealt with on review relating to the conduct of a hearing, or the nature of the remedy.
19. Ms Teniola argues that the statutory mechanism gives the parties the advantage of a two stage process, and that two hearings are envisaged. It cannot be doubted that there has already been one hearing, and that on appeal the statutory process of a full oral hearing before the Tribunal will fall into place. The process it seems to me gives the parties the opportunity to attend two hearings, and Ms Teniola did have the opportunity to attend and did in fact attend at the first hearing before the adjudicator. The right is a right to an opportunity to be heard, and Ms Teniola was not denied that right. What she seeks in essence is more than the law permits, an opportunity to have a fresh hearing when she chose not to engage with the first hearing notwithstanding that she had opportunity to do so. At the hearing before the adjudicator Ms Teniola had an opportunity to but chose not to adduce any documentation, and I take the view that, while the documents might as she said have been left with her solicitor, she must have been aware that she needed more than one copy of documents for the hearing, and it strikes me as unlikely that she would not have kept copies. I return later to this question.
20. There would have been available for the Tribunal on an appeal the full report of the adjudicator and I have considered the contents of the report in the light of the concern articulated by counsel that the appeal would be tainted by the report. The report identifies the claim of arrears of rent, that the tenant fell into arrears shortly after the commencement of the tenancy, that an indulgence in the arrears was agreed, and the stated amount of the arrears at the date of the hearing. Ms Teniola says she felt obliged to attend the hearing, but that she had no “comments” to make as her solicitor was unavailable. When asked by the adjudicator she said she did not have any details of the rent paid and she said any material was with her solicitor. Thus it seems to me that the reasons given by Mr Brady for his determination, namely that the rent had fallen into arrears, that the tenant had been advised of this, and on previous occasions time had been allowed to the tenant to deal with the arrears, and that a valid notice of termination had been served, are all clearly set out in the report, and each could fully and adequately have been dealt with by the Tribunal on an appeal. Documentation could have been adduced with regard to arrears of rent, the applicant could have been legally represented, and calculations could have been redone. There is in those circumstances no risk that, as was put by counsel for the applicant, the decision of the Tribunal would be tainted by an error or frailty in the decision of the adjudicator, if such there be. The errors identified for the purpose of this argument are not errors of jurisdiction, nor errors of process, but of factual matters each of which could have been corrected on appeal.
21. Accordingly I reject the argument made by the applicant that the statutory appellate structure was likely to result in unfairness at the appeal stage, arising from a taint of the appeal by the process and determination at first instance. I turn now to consider the complaints of unfairness in the conduct of the hearing, and whether these can be adequately dealt with on appeal, or whether judicial review is a more appropriate remedy.
The complaints
22. The applicant makes two classes of objections with regard to the course of the hearing. She says that she did not obtain a fair hearing, primarily because her solicitor was not present and that she sought an adjournment to a date which would facilitate his attendance. She also states that she had wished to present to the adjudicator certain matters with regard to the condition of the premises, presumably as she considered that the condition of the premises offered her a defence or partial defence to the claim of her landlords.
Application for the adjournment
23. The applicant does not deny that she received the letter of the 5th February, 2014 notifying her of the hearing date of 6th March, 2014. What she says rather is that her chosen solicitor was not in a position to appear for her on that date due to prior engagements, and that the failure to adjourn in those circumstances amounted to a denial of fair procedures. It seems that her solicitor, Mr Byrne, did make contact by phone with the Board on 4th March, 2014 and requested an adjournment, but was advised that ten days’ notice was required if the matter was to be adjourned, and that this rule of practice would be departed from only in exceptional circumstances. Ms Teniola says she was unaware of the ten day period, but was aware that an application for an adjournment was required to be in writing. Neither Mr Byrne, nor Ms Teniola herself, sought an adjournment in writing but Ms Teniola attended at the hearing and in her grounding affidavit she says that she stated on three occasions at least that as her solicitor was not present, and as her solicitor had all relevant documentation which she wished to present at the adjudication hearing, that she felt that she could not “advance any meaningful response”. She avers that she attended at the hearing as a matter of courtesy only, and that she did not feel that she was “given any adequate opportunity” to engage with the process.
24. Ms Teniola does not deny that she knew that her applications for an adjournment were required to be made in writing and offers no satisfactory explanation as to why she did not seek an adjournment in writing after she became aware on the 3rd March, 2014 that her solicitor would not be able to attend the hearing on the 6th March, 2014. The question of whether to grant an adjournment was not entirely a matter within the remit of Mr Brady, and this is clear from the notice sent out by the Board, and it is the Board itself through its secretariat that deals with the administration of the adjudicative process. Mr Brady avers to the fact that Ms Teniola did not make an application for an adjournment during the hearing and Ms Teniola does not say that she did. It seems to me, and without having to resolve any issue of disputed fact, that Ms Teniola did not apply for an adjournment at the hearing, and she does not now state on affidavit that she did, and she did not apply for an adjournment in writing at any time before the hearing. Her complaint is rather, that the hearing was not satisfactory as she could not fully engage.
25. I turn now to consider whether the refusal of Mr Brady to adjourn the matter to enable Ms Teniola to be legally represented was a denial of her rights to a fair procedure. The adjudicator has considerable flexibility in approach as is evident from s. 97 of the Act which enables him or her to offer assistance to the parties at stages in the process, and the legislation envisages that the adjudicator would govern his or her process. I note also from the provisions of s. 97(5) that the adjudicator may look to whether certain procedural decisions by him would be of “practical benefit” to the parties and in respect to which he may offer assistance. This points to a legislative intent that the adjudication process be informal, and the adjudicator is given wide discretion with a view to achieving a degree of informality consistent with his obligation to arrive at an impartial result. The legislation must in my view be interpreted in such a way that the court ought not to require the degree of formality or process at the adjudication stage that would be afforded at the Tribunal appeal, or in a court. The discretion of the adjudicator on an application to adjourn the hearing must be seen in this context.
26. The applicant is a foreign national and English is not her first language. She does not state, however, in her grounding affidavit that she did not understand the procedures, evidence, arguments or submissions that were heard by the adjudicator, and indeed there is no reference in her grounding affidavit to any language or comprehension difficulty that she had, and the sole reference to her current personal circumstances are that she has been resident in Ireland since 2001 when she sought refugee status in the State as an unaccompanied minor. There is nothing before me then to suggest that Ms Teniola had difficulty in comprehending what was happening at the adjudication hearing, nor indeed the purpose and intent of the hearing. What she says rather was that she was not able to offer any “meaningful response” partly because her solicitor was not present, and also because her solicitor had all the relevant documentation. She offers no explanation as to why she did not have copies of the documentation, why she did not take the originals of the documentation from her solicitor when she knew he would not be in a position to assist her at the hearing, or why she did not seek to offer any evidence herself or any submissions with regard to the condition of the house, whether her rent was in arrears or whether the notice of termination was valid. Some of the questions that might have been raised at the adjudication involved legal analysis and some knowledge of the rights and obligations of the parties to the letting agreement, but most of them were matters of common sense in respect of which it is to be expected that Ms Teniola herself as the sole tenant of the premises had personal knowledge. Evidence from her for example with regard to the condition of the house, or that she was not in fact in arrears of rent, would of necessity have been evidence from her personally, whether through the production of documents, photographs or oral evidence of facts and circumstances.
27. In the letter dated the 5th February, 2014 which notified the hearing date, there was a considerable amount of assistance offered to the parties to a dispute as to how documentation might be submitted, including a facility for photographs to be submitted in hard copy or digital format, and it was indicated that the documentation would be copied to the adjudicator and to both parties. There was in bold print a direction to the parties not to submit original documents to the Board and a request that originals be brought to the hearing. From this it must have been clear to Ms Teniola that she would need at least two copies of any documents that she required to submit to the adjudicator for the purposes of the determination, and while she says that she left the documentation with her solicitor, it is unsatisfactory that she did not have available for the hearing copies and the originals of the documents which might have supported her case. She does not identify which documents were not available to her and for that reason I cannot ascertain whether these could have been necessary for the proper conduct of the hearing. Furthermore, Ms. Teniola attended her solicitor on 3rd March, 2014 only three days before the hearing, and after the ten day period for the lodging of documents had passed. It is clear from this fact that the unavailability of documents at the hearing arose from Ms Teniola’s own failure to submit documentation to the Board in accordance with its requirements, and this failure did not arise as a result of her having left the documentation with her solicitor. The adjournment of the proceedings to enable the solicitor to attend would not have cured this defect and no explanation is offered by Ms Teniola for her failure to lodge the documentation, the absence of which she now avers was prejudicial to her defence.
28. I regard it therefore as significant that Ms Teniola did not lodge any documentation with the Board within the ten day time limit clearly set out in the notice. I also regard it as significant that she brought neither originals nor copies of any documents or photographs to the hearing, and her explanation that the documentation or evidence was with her solicitor is unconvincing. Of more significance is the fact that Mr Brady swears that Ms Teniola did not seek to have documents admitted into evidence at the date of the hearing, and this averment on his part is not contested.
29. I consider further that no document or class of document has been identified to me which might have been available at the adjudication hearing and the submission as to the absence of documentation is made in a generalised way. Accordingly I have not been able to identify a specific prejudice or unfairness from the failure to adjourn the adjudication hearing to allow for the production of documentation.
30. Ms Teniola does not argue that all parties to every type of dispute resolution are entitled to be legally represented, and such a proposition would have far reaching consequences. What she says rather is that she chose to be legally represented and that in such context the hearing was flawed. There was no inequality of arms, and the landlords were not legally represented. I am not persuaded that she has shown any prejudice from her lack of legal representation and she has identified no factual matrix which might have raised issues requiring legal argument or even cross examination.
31. The matter, however, goes further than that, and Ms Teniola in her grounding affidavit made it clear that she was prepared to deliver up vacant possession, but that she wished to have her deposit refunded before or at the time she vacated the premises so that she could fund a deposit on alternative premises. This is precisely what she achieved by the determination, and Mr Brady made an order for the delivery of possession and directed the refund by the landlords of the security deposit “on gaining vacant possession of the above dwelling”. I can find no merit in the complaint of unfairness in these circumstances where Ms Teniola has achieved precisely what she sought, and I fail to see how the presence of her solicitor could have achieved more than that desired result.
The condition of the premises
32. The argument that Ms Teniola makes on the merits of the case, namely that the condition of the dwelling was unsatisfactory, and not in compliance with the covenants on the part of her landlord, were arguments that she could have advanced personally as they were matters particularly within her own knowledge, and she was in a position at the hearing to either make argument or adduce oral evidence with regard to such complaint. I conclude that Ms Teniola chose not to adduce any such evidence or to make any argument with regard to the condition of the premises, and to borrow her own words she did not “advance any meaningful response”. Whatever argument might have been made by any lawyer acting for Ms Teniola at the hearing of the adjudication with regard to the condition of the premises, she herself would have to have given evidence and her evidence would have been critical for the determination of the issue. The matters of which she complained might well have arisen from an alleged breach of covenant by the landlords, and whether this offered her a remedy or a defence to the claim for possession is a question of law, but the factual basis on which such an allegation could be made are matters of no great difficulty and also within her direct and personal knowledge.
33. Ms Teniola complains that the adjudicator’s report makes no reference to the difficulties she was having with the condition of the house but nowhere in her affidavit does she say she mentioned a complaint at the adjudication with regard to the condition of the house, nor that she gave any evidence or produced any documentation with regard to such complaint. The combined effect of what Ms Teniola says is that she attended at the hearing, she did not engage with the process, she tendered no evidence, made no submissions and made no compliant with regard to the calculation of the rent, the state of the premises, or with regard to any matter before the adjudicator save for one critical and central question which was before the adjudicator, namely the question of the termination of the tenancy. I turn now to consider the importance of the adjudicator’s decision on this critical question.
The termination of the tenancy
34. Ms Teniola accepts in her affidavit that would leave the premises but that she wanted a refund of her security deposit. Indeed she says:
“I say that if they wanted me out, of course I would leave, I just wanted my deposit back in order to secure new accommodation. Both the notice parties and the first named respondent indicated a view that his was not possible.”
35. The matters before the adjudicator were the question of arrears of rent and the termination of the tenancy, which of itself would include a question of the return of the security deposit. The adjudicator determined that the tenancy had been properly terminated, and the tenant offered no evidence with regard to the payment of rent. Thus it seems to me that any argument that is made by her counsel with regard to a failure of the first respondent to engage with the question of the arrears of rent is unsustainable. Furthermore I consider that any frailty in the decision of the first respondent with regard to the calculation of rent, could have been fully dealt with on appeal.
36. The decision of the adjudicator was that Ms Teniola would receive a refund of her security deposit on giving vacant possession, and the premises were directed to be delivered up by the tenant within 14 days of the date of issue of the determination order by the Board. I return later to the practical effect of such a determination, but I note, however, that the arrears of rent as calculated by the adjudicator were directed to be paid by instalments on the 28th day of each month until such time as the amount calculated was paid in full. The adjudicator did not permit the landlords to set off the amount of the deposit against the arrears, and the payment of the arrears was deferred over a period of four months, payment to be made by three equal instalments, with the final payment on the 28th day of the month immediately succeeding the last of such three monthly equal payments. The adjudicator it seems to me dealt fully with the matters put before him by Ms Teniola, namely her desire for a refund of her deposit in exchange for vacant possession, and although Ms Teniola did not have a solicitor present she was not prejudiced in regard to this question, as she herself made clear submissions to what she wished to achieve, her willingness to leave the premises, and her request for the refund of her security deposit. The matter not resolved, it seems, to her satisfaction was a matter not raised by her in correspondence before the hearing, nor at the hearing itself, namely the question with regard to the condition of the premises, and the precise quantum of the arrears of rent.
37. An applicant for judicial review must show that the statutory appeal mechanism would not have cured an identified defect, and in this case not only was no defect identified to me in the final determination, but the sole matter stated not to have been resolved was one not canvassed at all before the hearing, or in pre-hearing documentation or submissions, namely the condition of the premises. The purpose of the statutory scheme is to enable a cost effective, relatively informal and speedy resolution of disputes with regard to residential lettings, and were I to grant review of the determination made in this case on the grounds that the adjudicator failed to have regard to the condition of the premises, I would be ignoring not merely the statutory scheme, which has the benefit of what I have already described as a robust appellate remedy, but also the rights of the notice parties to be heard on all matters in dispute. Such a result would be wrong and untenable.
Error on the face of the report and determination?
38. Counsel for the applicant identifies what he says is an error in the determination, namely that the direction for the refund of the deposit is not unconditional in that the landlords were permitted to deduct “any amounts properly withheld in accordance with the provisions of the Act”. It is argued that this phraseology is ambivalent or uncertain. Ms Teniola was given an opportunity to pay the arrears of rent found to be due by the making of three consecutive payments commencing on the month after the issue of a determination order by the Board, with the balancing payment to be made on the fourth consecutive month, and I consider that on no reasonable interpretation of the determination could it be said that the landlords were entitled to withhold the security deposit pending the discharge of these arrears, as the direction clearly required them to repay the security deposit on the gaining of possession which was clearly anticipated as being a date several months before the final instalment of the arrears is paid. Thus the sums that could be deducted must be those identified in s. 12, such sums as are found to be due on an inspection at the time possession is delivered, in itself an amount not capable of being ascertained before that date.
39. Furthermore, if there is a lack of clarity in the determination with regard to what amounts, if any, could be deducted from the security deposit by the landlords, such could readily have been rectified by an appeal to the Board or by an appeal confined to that issue. I also consider that Ms Teniola could have availed of the provisions of s. 21(3) which permits the Board to remove any ambiguity in a determination, and Ms Teniola might have availed of this procedure to seek clarity as to the amount, if any, that could lawfully be set off by the landlords from the security deposit.
Criminal sanction
40. Counsel for the applicant also makes the point that judicial review is more apposite in a case where a criminal sanction can lie for breach. The availability of a criminal sanction for breach of an order by the Board is clear in s. 126 but it is equally clear that any criminal sanction arising from breach of an order would lie against the landlords for failure to return the security deposit or against Ms Teniola for failure to deliver up possession. Given that she has indicated in her affidavit that she was prepared to deliver up vacant possession in exchange for the security deposit, I do not consider that Ms Teniola was at any risk of imprisonment for breach of the order for delivery up of possession. I also consider that even if Ms Teniola did face criminal sanction for failure to pay the arrears of rent as calculated, this is a matter well within her control, and nowhere has she stated on affidavit or before the adjudication hearing that the rent arrears were not due by her.
Bias
41. The applicant also claims that Mr Brady exhibited a degree of bias in that he engaged in conversation with the notice parties/landlords at a time when the applicant was not present in the room. I can deal shortly with the plea of bias. There is nothing before me that could lead me to a view that there was any degree of objective bias in this case. The law is well established, and the person who argues bias must show that a deciding body had a proprietary or personal interest in the case or some external factor is identified that gives rise to a perceived bias. The bias that is contended for by counsel for the applicant is governed by law as stated in USK and District Residents Association Ltd v. An Bord Pleanala and Ors [2009] IEHC 346 by MacMenamin J. at para. 22 as follows:-
“Objective basis is to be distinguished from subjective bias. To establish the former, it must be shown that there existed some factor, extraneous to the decision-making process, which could give rise to a reasonable apprehension that the decision-maker might have been biased.”
42. What the applicant alleges is that there was a conversation between the adjudicator and the notice parties at the end of the hearing. It is asserted by her counsel that this conversation gave the appearance of the absence of fair procedure and that justice was not seen to be done. No factor has been identified by Ms Teniola in her affidavit which would suggest any extraneous factor operating or likely to be operating in the mind of Mr Brady, nor was she in a position to point to any particular association or involvement of Mr Brady with the matter that might have influenced his decision. At best, and taking the case of the applicant at its height, she has identified that a conversation may have taken place between Mr Brady and the notice parties for a short period of time after the hearing before he gave his determination. She can identify no factor which would suggest that objective bias in the sense identified by the court in USK and District Residents Association Ltd v. An Bord Pleanala and Ors could be said to exist.
43. Accordingly the claim of bias must fail.
Decision
44. For the reasons stated it seems to me that the application must fail at the first hurdle and that the applicant is not entitled to seek judicial review of the decision of the adjudicator in this case, she having failed to establish any basis on which any such appeal might not have dealt fully with her stated defence to the overholding proceedings and/or her stated complaint that she was refused an adjournment and required to conduct the hearing without the presence of her chosen solicitor. The complaints made were to some extent complaints of absence of jurisdiction or fairness, classic judicial review complaints, but each of them were capable of being adequately dealt with at an oral hearing before the Tribunal in the course of a statutory appeal under s. 100, and the applicant has not established to my satisfaction that any of her complaints were of such a fundamental nature that they could not have been addressed and if necessary rectified on appeal.
45. Therefore I refuse the relief sought.
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